§ 3.4 p.m.
§ Report received.
§ Clause 2 [Time of election and term of office of members]:
Lord ELTON moved Amendment No. 1:
Page 2, line 32, leave out ("elected to fill a casual vacancy") and insert ("otherwise").
§ The noble Lord said: My Lords, at the Committee stage of this Bill we tabled an Amendment to provide a means for the Assembly to be dissolved under circumstances where that was the only solution to a political deadlock. There followed an exchange across this Table and across the Floor of the Committee in which the principal doubt was whether or not there was to be in the Welsh Assembly an Executive within the meaning of the term normally attributed to it. 990 The noble Lord, Lord Harris of Greenwich, understandably advanced the view that, unlike the provision in the Scotland Bill whereby the Assembly would have a legislative Chamber with an Executive dependent upon carrying a majority of the Members of that Chamber with it, and exposed to all the risks of failing to achieve such a majority, unlike that situation which required a power of dissolution of some form or another, in the Welsh Assembly there was no Executive because it was not a legislative Chamber.
§ There are two considerations here. The first is that there is a considerable measure of legislative power entrusted to the Welsh Assembly as a body, although this takes the form of subordinate legislation rather than statutory legislation. That I think is not the principal consideration, although it was advanced as an important one at the Committee stage. The important consideration seems to me to be this. The Welsh Assembly, as envisaged by the Government when they drafted this Bill, was to consist of a Chamber made up of representatives of electors in constituencies of different Parties sitting in the Chamber, and most of the committees to which it would delegate the greater part of its powers would be similarly constructed, while the Executive Committee—note the word, my Lords—was to be made up only of the majority Party. That is a position which we have I hope happily changed.
§ Another change in the Bill since it was originally drafted has been the introduction by my noble friend Lord Harlech, and others, of the principle of proportional representation which could quite radically alter the expected balance of Parties in the Chamber of the Welsh Assembly as a whole. We have no means of telling in what form this Bill will return to us from another place, nor until we have seen that form can we tell which of our Amendments ought to stand and which ought to fall. It is therefore by no means unlikely that we shall receive a Bill which has an Executive Committee restored to its mono-Party construction and thus in effect restored to the role of a Cabinet in any other Chamber and, at the same time, an Assembly which could be well of a colour which led to its being hung between two different political groupings. In other words, there could be a situation 991 where that balance could lead to the stultification of the business of the Assembly. It is not a prospect which is likely to occur frequently, but one which, if it arose, could give rise to considerable embarrassment and inconvenience.
§ I do not regard this as in any way a Party measure, and I do not think that any of your Lordships will. It is a question of the practical machinery of Government. We are well aware of the sensitivity that exists in Wales about any restriction of the powers of the Welsh Assembly, and of the extent to which noble Lords opposite feel that this should be voiced here. Therefore, we do not seek to introduce any reduction in the authority of the Assembly at all. We wish merely to provide the means by which the Assembly, when it recognises that the only way forward is by means of what we in this House call an appeal to the country (and the Assembly might call it the same), that is to say, dissolution and an election, has that alternative presented to it. When the Assembly have considered it, if they wish to do so, they should take advantage of it. Nobody will impose it upon them; nobody will overrule their decision; but they should be empowered to set in motion the machinery for winding up an Assembly which might otherwise fritter away two or even three years in sterile argument at great expense and to the frustration of their electorate and, indeed, of the Members of the Assembly itself.
§ I hope noble Lords opposite will accept that this Amendment is put forward therefore in a non-partisan and constructive manner, and that they will find it in them either to accept the Amendment or to rebut it with arguments which will seem to us more forceful than those which they advanced against the same principle at the Committee stage. I beg to move.
§ Lord DAVIES of LEEK
My Lords, if I may insert a caveat, I am worried about the number of Amendments that are put forward, as I mentioned earlier when we were debating the future Assembly. We are trying in regard to this Assembly, so it seems, to make a completely watertight Bill, and thus an enactment which will be water-tight, for an organisation which is not yet in existence and which may or may not come into existence. 992 Nevertheless, it is an organisation which we hope will be an intelligent organisation, and therefore many things will be empirical in its existence. I do not in any way wish to deprecate the magnificent work and the effort that the noble Lord, Lord Elton, has put in to improve the Bill; but in some cases I sincerely believe that we are trying too much to put down exact phraseology to guide an Assembly which will have to learn to govern itself by trial and error, to put it simply. I hope we shall not have too many of these "fernickety"—perhaps that is an ugly word, but nevertheless I will use it—Amendments, which in the end could stultify an organisation which must learn through trial and error.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, as the noble Lord, Lord Elton, said, we discussed this matter at some length in Committee, and I said then that we did not regard it as necessary to give the Welsh Assembly the power of premature dissolution. However, we do regard it as necessary for the Scottish Assembly, in certain very limited circumstances, and I explained that also when we dealt with this in Committee. In view of what the noble Lord, Lord Elton, has said in moving this Amendment, I do not think there is any need for me to remind the House that the Scottish Assembly is to be a legislative body, from which a separate Executive is to be formed. The Welsh Assembly is not to have a legislative competence and is itself to be the Executive.
In Scotland, the Executive will need to secure a sufficient measure of support from the Assembly as a whole if it is to continue to ensure the progress of essential public business. If a situation arose in which the Scottish Assembly could not ensure the continuance of essential business, the good governance of devolved matters would clearly be at quite considerable risk. Such a situation could arise, obviously, because of the progressive effect of a number of by-elections or because of political realignments within the Assembly itself. Such a situation could persist so long as the Assembly remained constituted broadly as it was at the time of the last Assembly election. Clearly, a situation of the kind I have just described would be one of some 993 crisis. That is why the Scotland Bill provides for the test of a two-thirds majority of all Members before a premature election could be held. What is more, the Members of the Assembly elected after a premature dissolution would only serve out the remainder of the original four-year term.
I do not believe that a similar situation could be seen as arising in Wales, on the basis of the Bill that is before us. There is to be no Executive dependent on majority support in the Assembly for any particular proposal or for its policies as a whole. I am even tempted to ask, in the light of what the noble Lord, Lord Elton, has said in moving this Amendment, how this form of words he has put forward is consistent with requiring, Party balance in the Executive Committee, a proposition carried by noble Lords opposite when we were in Committee.
I suggest that the Amendments which are proposed rest on a basic misunderstanding of differences in the Government's proposals for Scotland and Wales. I do not believe that situations will arise when a premature dissolution would be required. Although I do not wish to equate the wide powers and responsibilities of the Assembly with those of local authorities—we went over this ground in Committee, as the noble Lord will recall—I feel it is necessary to point out that there is no provision for premature dissolution in local government. I am sure that the absence of such a provision has not been found critically damaging: indeed, I cannot recall this particular point being raised in relation to local government.
Perhaps I might add one rather technical, but not unimportant, footnote as to the effect of this Amendment, if it is carried. Clause 1(6) provides that the Assembly shall be a corporate body. These Amendments provide that the Assembly shall be dissolved. I am advised that if you dissolve a corporate body it simply disappears. I know that some noble Lords opposite would very much like this Bill to disappear, but I suspect that is not the direct intention in this Amendment. I hope that, in the light of what I have said, the noble Lord will decide not to press the Amendment.
§ Lord ELTON
My Lords, I am obliged to the noble Lord. I hope your Lordships will have appreciated something which I forgot to say at the beginning; namely, that this Amendment and the next one hang together. That must have been clear from what we were saying.
If I may deal with the objections made in series, the noble Lord, Lord Davies of Leek, couched his criticisms in the most flattering language, for which I thank him, although he went on to say that many of the Amendments were "fernickety". I should like to point out that this is not a "fernickety" Amendment because, if it is not made and if the circumstances I have described should arise, it will be no good the Welsh Assembly then saying: "Ah, a new situation has arisen: we must learn how to govern ourselves", because there will be no provision for them to do anything about it at all. That has to be done, if it is to be done at all, before the Bill leaves this House.
The noble Lord, Lord Harris, again advanced the understandable theorem that the Assembly is itself the Executive. However, he will recall that it is the intention of the Bill that by far the greater power of the functions of the Assembly shall be delegated to committees, and the most important of those committees is the Executive Committee. He rightly reminded me, as I reminded your Lordships a moment earlier, that we have provided now for this Committee to reflect the Party balance; but as I understand the procedures of our House, if that Amendment were to be taken out of the Bill in another place and if we were to abide by that excision, we could not then bring this Amendment back in because it refers to a different clause in the Bill. I may, of course, be wrong about that.
A number of subsidiary questions suggest themselves to me, of which I suppose the most pertinent is: what would the Government expect the composition of the Executive Committee to become, supposing the colour of the majority in the Assembly changed in mid-term? That would be relevant to the need to dissolve, or not, because if you could have a change in the composition of the Executive Committee entirely in harmony with the composition of the Assembly itself, the difficulty I fear would 995 not arise. That is something which the noble Lord may wish to advise me about before a further stage of the Bill.
As to the disappearance of the corporate body, I take it that this is something to which it will become accustomed in every fourth year. I think that the noble Lord, Lord Harris, is about to correct me, but perhaps I may just make the statement so that he can put it right. At the moment, the natural life of the Assembly is to be four years. Presumably, it then ceases to be an Assembly and it is dissolved on the eve of the day of an election. So that it must cease to be, and will be able to solve certain problems, if not its own, in that manner. If the noble Lord will advise me between now and the next stage as to the composition of the Executive in the event of a change in the majority in the Assembly, then I think that, as a mark of the fact that this is in no way a partisan action, it would be better if I were not to press this Amendment further and if we were to move on to the next Amendment. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ Clause 3 [Elections]:
§ 3.21 p.m.
Lord ELTON had given Notice of his intention to move Amendment No. 3.
Page 3, line 23, leave out from ("any") to ("provision") in line 24.
§ The noble Lord said: My Lords, the noble Lord, Lord Harris, has written me a courteous and explanatory letter on this Amendment. He has pointed out to me that my difficulty rested on not recognising the difference between the phrase "the provision of an enactment", and the phrase "the provision under an enactment". This has the effect, I understand, of meaning that the words which I sought to delete are not, in fact, superfluous. At great length, I have said that I shall not move this Amendment.
Lord CULLEN of ASHBOURNE moved Amendment No. 3A:
Page 3, line 32, after ("the") insert ("Welsh").
§ The noble Lord said: My Lords, this is a similar Amendment to one which was 996 moved by my noble friend Lord Campbell of Croy during the Committee stage of the Scotland Bill. That Amendment was accepted but with reservations, since it was consequential on a previous Amendment which transferred from Westminster to the Assembly the responsibility for reviewing the electoral arrangements. If this Amendment were passed, the estimated cost of elections would, no doubt, be one of the fixed items to be taken into account when negotiations over the block grant took place. The Amendment would mean that an order under this clause would provide for the charging of any sum to the Welsh Consolidated Fund, instead of to the United Kingdom Consolidated Fund. It may be that the Government, after their reflections on the Scotland Bill, will find this Amendment to their liking. My Lords, I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, electoral matters are, as the House is aware, not to be devolved. The basic arrangements for the conduct of elections are set out in Clause 3, and the detailed arrangements will be set out in an order under subsection (3). Because the Secretary of State will retain control over the electoral arrangements, the Government's view is that it is appropriate that the cost of meeting these arrangements should fall on United Kingdom, rather than Assembly, funds. However, noble Lords have already amended the Scotland Bill to ensure that such expenses should fall on the Scottish Consolidated Fund. At the end of the day, to be absolutely blunt, it makes very little difference which Fund the expenses are charged upon, and although the Government feel that logic, as always, is on their side, they are willing to accept this Amendment so far as this House is concerned.
§ On Question, Amendment agreed to.
§ Clause 4 [By-elections]:
§ 3.25 p.m.
Lord ELTON moved Amendment No. 3B:
Page 3, line 40, after ("below") insert ("(a)").
§ The noble Lord said: My Lords, this Amendment seeks to clarify what has remained persistently obscure to me since the Committee stage, and relates to the passage of the Bill amended by the proportional representation provision. I asked in Committee stage—and I think that those of your Lordships who were in a position to answer my question thought I was not serious in my inquiries—what was to happen if there should be no person remaining on the list of candidates available to step into the breach, should an additional Member's seat fall vacant. What would then happen? There was no provision that I could see in the Bill for the holding of a by-election.
§ I did not devise the proportional representation Amendments, though I found them welcome; nor, indeed, did the noble Lord, Lord Harris, who is doubtless expected to reply to this Amendment. My principal inquiry was addressed to the noble Lord, Lord Lloyd of Kilgerran, who I believe cannot be here. But he has allies in this matter, who will perhaps be able to tell your Lordships how many names are expected to be on the list in question, what is the smallest number that there might be upon that list and what will happen if it is a short list and there is nobody on it still willing to serve as a Member of the Assembly, say, two years after an election has taken place, when some of them may have signed contracts of employment which they cannot afford to break, some may have died and some may have left the country or in other ways disqualified themselves? It is quite possible that four or five people could vanish, like summer mist, at the moment when they were asked whether they would like to take up a seat; and at the moment I see no provision other than that which I now suggest for avoiding a vacancy in the Assembly, which might last for two or even three years, and which would not be satisfactory. My Lords, I beg to move.
§ Lord BANKS
My Lords, I think that the answer to the noble Lord who has moved the Amendment is that each political Party—and this deals only with political Parties—would nominate as many candidates as there were topping-up seats to be filled, so that each political Party would have a full list. It would 998 clearly be in their interests to do that. It seems to me that the chance of this situation ever arising is fairly remote. I understand that this system works in Western Germany in the way described in the Bill, and that the problem has not arisen there.
I am not clear from the Amendment where it is proposed that the election would be held. Would it be held throughout the whole of the region? It seems necessary that it should be held throughout the whole of the region, since the Member to be replaced would be a regional topping-up Member and not a constituency Member. If it were held throughout the region, then it would be certain to operate against the whole principle of topping-up, which is to take the Members elected by the constituencies and then top them up so that the total result is proportional to the votes cast.
So it seems to me that it would be better not to accept the Amendment proposed by the noble Lord, Lord Elton, but to leave the situation as it is and, if it were found that this unlikely contingency arose, it would be possible at that time—I should have thought fairly simply—by means of legislation, to provide, for example, that other regional lists of the same Party could be used, and that you could move on to them if there was nobody on the list for that region and for that Party, who was willing to fill the topping-up place. I think we should remember that these are topping-up places and the whole object of the exercise goes if you have an election on "first-past-the-post", whether on a regional or on a constituency basis.
§ Lord HARRIS of GREENWICH
My Lords, the Government would be perfectly content to accept this Amendment, given the decision of the House on the point of substance—of course, entirely without any commitment to the view that might be taken in another place. It is a matter for the House, so far as we are concerned. We are not disposed to quarrel with this Amendment, given that the previous decision was taken; but it is a matter for the House to decide.
§ Lord ELTON
My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for what he has just said. I am a little less than content with the information 999 I have been given in answer to my question in the unusual direction in which it is directed, in that I still do not know what the number in the shortest list might be. It would seem to depend, first, upon the size of the region, and, secondly, the degree of success of the Party in question. It is not at all clear to me that this situation will not arise. I am obliged to the noble Lord, Lord Harris of Greenwich, if in fact his advisers are content with the drafting of this Amendment. I always pay the greatest attention to what they say and I am sure they would have told us if they were not content with it. I shall in a moment give way so that the noble Lord can set my mind at rest on this matter and then we would be happy to proceed on this basis. If he feels there are defects, then they would have to be remedied at a further stage; but it would be of help to the House if he was to make them party to the comments of his own advisers as to the efficacy of the remedy here devised.
§ Lord HARRIS of GREENWICH
My Lords, I am in some slight difficulty. Objection was taken during our proceedings on the Protection of Children Bill by a number of noble Lords about people speaking twice during the Report stage. I will gladly answer the noble Lord's question but I shall say that in view of the fact that I undertook then to draw the exchanges to the attention of the normal channels it would be wrong for me to make two speeches even when invited to do so by the noble Lord, Lord Elton. All I would say is, Yes, we are content with this particular form of words, given my clear and rather substantial qualification that this is a matter which will have to be reconsidered in another place.
§ Lord ELTON
My Lords, I am much obliged to the noble Lord for his not undelphic statement, and therefore I beg to move the Amendment.
§ On Question, Amendment agreed to.
§ 3.33 p.m.
§ Lord ELTON moved Amendment No. 3C:
Page 3, line 41, after ("vacant") insert ("or
(b) where the seat of an additional member of the Assembly is vacant and there is no such willing candidate under subsection (5) below.").
§ The noble Lord said: My Lords, this belongs with 3B. I beg to move.
§ On Question, Amendment agreed to.
§ Baroness ELLES moved Amendment No. 4:
Page 4, line 32, at end insert—
("(cc) he is a Minister of the Crown; or").
§ The noble Baroness said: My Lords, this is partly a consequential Amendment on Amendments which were debated during the Committee stage of the Bill when we inserted in your Lordships' House a disqualification of being a Member of the House of Commons from being a Member of the Welsh Assembly. There were two matters which were not discussed in connection with that particular Amendment or indeed with the Amendment which is now before your Lordships' House. The first point is that the noble Lord, Lord Harris of Greenwich, when he replied to the proposal that a Minister of the Crown should be disqualified, said that he did not think that any Minister would "moonlight" and that a Prime Minister would probably see to it that he did not keep a Minister who also stood for the Welsh Assembly. That is what was implied. But what was never discussed was a Prime Minister who might seek from among the Members of the Welsh Assembly somebody who should become a Minister.
§ It seems very sensible that if somebody is made a Minister from the Welsh Assembly—and we hope that they will be producing people of that calibre in the Welsh Assembly—he should be automatically disqualified from sitting as a Member of the Welsh Assembly, so that he can take up immediately the appointment as a Minister without any question of continuing to represent a part of Wales in the Welsh Assembly. That is one reason for putting forward this Amendment now. The second point is that a Minister of the Crown who is in the House of Commons would be disqualified as the Bill now stands, whereas a Minister of the Crown in your Lordships' House would not be disqualified; and on these matters we could consider ourselves as ranking pari passu with another place and disqualify all Ministers of the Crown from being Members of the Welsh Assembly. I beg to move.1001
§ Lord LEATHERLAND
My Lords, I wish to raise a minor point similar to the one which I raised on the Scottish Bill a week or two ago. It is, who is to be regarded for this purpose as a Minister of the Crown? Is it to be the head of a Government Department, a fully fledged Minister? Is it to be his Parliamentary Secretary, his Secretary of State? Is it to be a Party Whip who holds some Government office? I know that this matter was discussed at some length after it had been originally raised, but apparently the phrase in its original, bald form appears in this Bill. I feel that "Minister of the Crown" deserves to be described in some detail.
§ Lord HARRIS of GREENWICH
My Lords, if I may begin I hope with only very mild complaint, I believe we are making extraordinarily heavy weather of this particular issue. I say that not as a bad loser so far as the last Amendment, which the noble Baroness described as having been passed during the Committee stage, is concerned. We on this side of the House are used to being losers in Divisions because of the Party majority of this House. But I am bound to say that this is not a very serious matter for this House. I do not want to go over the territory covered on the last occasion. What we have as a House said—and I just draw this to the attention of the entire House—is that it is quite all right to have a dual mandate so far as the European Assembly is concerned but it is quite wrong to have one so far as the Welsh Assembly is concerned. I did not believe then, and I do not believe now, that that is a serious proposition which can be defended in debate.
What we are now discussing, as the noble Baroness indicated in her speech, is whether a Minister who qualifies because of a residential qualification in Wales should be debarred from being both a Minister and a Member of the Welsh Assembly. The noble Baroness very widely and kindly drew attention to what I had said, which is that anybody who sought election while a Minister of the Crown to the Welsh Assembly would, 1 suspect—I more than suspect—be deprived rather rapidly of his office by the Prime Minister of the day. I do not think it is necessary to put that sort of material 1002 on the face of our Statute Book. The noble and learned Lord, Lord Hailsham of Saint Marylebone, has drawn attention on a number of occasions to the size of the Statute Book and this kind of material does not, in my view, add very greatly to the common sense of the legislation that appears there.
This particular form of words applies, as the noble Baroness rightly said, to Members of your Lordships' House, not Members of another place. That was dealt with on the previous occasion. I suspect that my noble friend Lord Goronwy-Roberts is the only person who would be covered by this particular Amendment. My noble friend is not with us, and I do not know whether he has a residential qualification in Wales—he may or may not have—but the point which the noble Baroness put to us was this. While one accepts the fact that a Minister is unlikely to say he wants to stand as a candidate for the Welsh Assembly, what happens if the Prime Minister of the day says to a Member of the Welsh Assembly, "We would rather like you to be"—as I assume—"a Member of the House of Lords and a Minister"? I suspect that the Prime Minister of the day would actually say, "Of course, you will realise this actually does mean giving up your seat in the Welsh Assembly". I do not believe that it is right or sensible to put this sort of material on the Statute Book. I must once again remind the House that at no stage during the European Assembly Bill was this point raised in any part of the House. We can have a dual mandate so far as Europe is concerned but not so far as Wales is concerned. I do not believe that we should do a great deal to encourage respect for this House by passing an Amendment of this kind.
The Marquess of TWEEDDALE
My Lords, I should like to say one thing to the Minister. We have had continual accusations thrown at us of being in a built-in majority. I should have thought it would be fairer for the Minister to have thought rather of the number of Life Peers who have been created by Sir Harold Wilson when he was Prime Minister and by Mr. Callaghan. If they should all bother to turn up, I think it would be found that this side was in a minority.
§ On Question, Amendment negatived.