§ 3.14 p.m.
§ The Lord CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor).
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Greenwood of Rossendale in the Chair.]
§ Clause 9 [Existing statutory functions]:
Baroness ELLES moved Amendment No. 42A:
Page 6, line 16, leave out from ("of") to end of line 17 and insert ("—
§ The noble Baroness said: In moving this Amendment, with the permission of your Lordships I should like to speak to Amendment No. 43D, concerning the definition of a statutory inquiry. Thisclause gives the key to the Bill and to how the Welsh Assembly is to work. It seeks to answer the questions: What is the Welsh Assembly going to do? What will its functions and powers be? What will its relationship be to the Secretary of State, to the local authorities and, perhaps, most importantly of all, to the individual people of Wales? We hope that the queries and doubts that will arise during our discussion on this Amendment will be dispelled by crystal clear replies from the Benches opposite, not only to clear our own minds of some of the fog which surrounds us when looking at the clauses of this Bill but also, and perhaps again more importantly, to help the people of 325 Wales themselves, who have to decide at the end of the day whether they really want this expensive, extra bureaucratic burden to be put upon them.
I think it should be remembered that by means of this clause the powers of the Secretary of State are reduced considerably and the local authorities acquire further supervisory powers. The taking away from the Secretary of State, of his powers and of the functions set out in Schedule 2 means a loss of sovereignty for the United Kingdom Parliament far greater, I may say, by devolution of powers to another elected body than were ever contemplated in the European Community legislation. It is somewhat surprising that the Leader of another place, Mr. Foot, said during the Second Reading of this Bill on 15th November last year, at column 506:
There is no impairment of the House of Commons or of its authority".
§ In view of the of Clause 9, that, of course, is questioned.
§ It is clear from the way the Bill is set out that functions given to Ministers of the Crown by statute have been carved up. Functions contained in Acts on the left-hand column of Schedule 1 are functions and powers devolving to the Wales Assembly, and those in the right-hand column are retained by the Minister of the Crown. Consequently—and this is an important thing to remember—the functions and powers retained by the Minister of the Crown will remain subject to control by a United Kingdom Parliament. That is basically the meaning of Clause 9(1)(a), as set out in the Amendment, and it is identical with the wording of the Bill as now drafted. There are, however, a whole bundle of functions of different kinds contained in Schedule 2 which, in general and in particular, we shall be debating later, during the Committee stage of the Bill.
§ It is perfectly natural and very understandable that, if you are to create a new body, for whatever reasons, whether cosmetic or not, you have to give it something to do. If, on the other hand, you wish to tighten your grip on individuals and to control them even more than they are already being controlled, it is not so much the functions which come under scrutiny but the manner in which 326 those functions are to be exercised—whether they are to be in public, whether the proceedings are to be published and who is to exercise these powers and with what limitations. So that this Amendment seeks to find out the Government's views on these matters.
§ Concerning the functions and powers which are retained for the Minister, unless alternative proposals are forthcoming, certain of them are identifiable by the following characteristics: first, that they wholly relate to the taking of decisions following an inquiry; secondly, that an inquiry will be one which has been ordered by a Minister, and in the future by the Welsh Assembly, to be held under some Act as set out in Schedule 2; thirdly, that the Minister, now the Welsh Assembly will appoint a person to hold such an inquiry; fourthly the inquiry may of course, be one which an individual will have requested shall be held in circumstances permitted under some statute and, finally, there will, of course, be those cases where the Welsh Assembly has to exert some form of quasi-judicial powers when deciding on a devolved matter which is in dispute between different authorities.
§ So what I am, first, asking the Government is whether they can tell your Lordships how many instances there are in Schedule 2 to the Bill where the Welsh Assembly will have powers to hold an inquiry, to give directions or even to take decisions from which there may be an appeal by an individual—again, to the Welsh Assembly. Of course, there will be instances under planning provisions and I should like to reserve discussion of these until later, when we discuss the Town and Country Planning Act. But there are examples that I can give to the Committee now which spring to mind, and which bring out the kind of situation with which the Welsh Assembly, vis-à-vis the individual, will be faced.
§ For instance, there is the power to designate a new town, or even to extend an existing one, under the New Towns Act; or under the Highways Act 1959, in Part XVII of Schedule 2, in relation to special or trunk roads. In both of those cases, the Welsh Assembly will be the authority directly concerned in the first instance, and later on in the proceedings it will have to deal with objectors. The other category where the Welsh Assembly 327 will, as I understand it, be exerting quasi-judicial powers is where it gives general directions or lays down overall policy. But here, again, at the end of the day, it will be hearing disputes and appeals as a result of giving those general directions. So, particularly in the first example that I have outlined, will the Government agree that the Executive is, in fact, giving directions and also acting as judge?
§ Furthermore, I should like to say something about the procedure under which this type of power will be exerted. We do not know at this stage, and perhaps the Government will be able to tell us, whom the Welsh Assembly will appoint to hear an appeal. Will it be the Welsh Assembly as a whole, or the relevant committee concerned with implementing subordinate legislation under the Act? Might it, indeed, in accordance with Clause 17 of the Bill, merely be one member of the committee, generally the leader; or might it be an outside individual with experience of such matters? If it is to be the leader with no other individual present, the judgment is bound to be purely political, without necessarily having any regard to fairness or equity. In the very nature of things, even if justice were done—and I do not doubt that many people who serve in assemblies or local government seek to fulfill their rôles as fair and honest members of society—it will not be seen to have been done.
It is worth recalling what happened in 1946 when the new town of Stevenage was designated by the Minister of the day. It was said at the time that,
… his role makes it inevitable that he will incline in favour of his own scheme".
This is an inevitable consequence when a body has to give general directions, and even more so when it actually has to decide on some scheme and then hear appeals on the matter. So that I should like comments from the Government on this aspect.
§ Following on from such an appeal to the Welsh Assembly, to one of its component parts or to an individual in that Assembly, what right of appeal would an aggrieved person have against such a judgment? At present, very often, the decision is final, but it is not final to the extent that an individual can always raise a matter with his Member of Parliament 328 and have it discussed in another place or, indeed, in this House. I believe that the United Kingdom Parliament still remains the last resort of any aggrieved individual in this country. A person can go to his Member of Parliament and be told that it can be debated in Parliament, so that justice is seen to be done to that individual. I do not say that it always happens, but that opportunity exists. But under the Bill, as I understand it, that will be impossible, particularly when the Welsh Assembly is exerting these quasi-judicial functions.
§ There is another aspect of this very serious problem to which I should like to draw the attention of the Government, and I hope they will be able to make some comment. Will the Government indicate to the Welsh Assembly, or to the authorities who will be responsible for the conduct of the Welsh Assembly, what rules of procedure will apply in these cases? Will there be rules of confidentiality? Will the committee—if it is a committee—the Welsh Assembly or the leader have a duty to act "judicially"? Will the committee, or a member of that committee, be able to communicate with the parties involved and what rules of disclosure will apply? Will the statutory codes for the conduct of inquiries apply in the case of the Welsh Assembly? Is it correct to say, as the Bill is at present drafted, that different rules of procedure may be adopted for Wales from those now applying throughout England and Wales? It would be highly undesirable if a standard of conduct for a quasi-judicial body, wherever it is in the United Kingdom, did not have at least some general code as to how it should act.
§ So that this Amendment draws attention to a very sorry state of affairs which is not only to be laid at the door of the Government, but which shows the elementary stage to which our administrative law in this country has developed over the last few years. It is, of course, due to an excess of legislation which impinges on the rights of the individual. It is time that we looked at our administrative law and, if certain Parties or the Government are to legislate and introduce laws and regulations which affect the rights of individuals, then those individuals should have some alternative right of appeal, other than to a member of the Government, whether it is the Government of the United Kingdom 329 or the Welsh Assembly, which we are now discussing.
§ In fact, this Bill emphasises even more that the principle of the separation of the Executive from the Judiciary is being breached, if an aggrieved individual wishes to appear before a body which will hear his or her justifiable complaints. So I ask the Minister whether she can inform the Committee of the instances in the Bill where it is foreseen that the Assembly will have to deal with these matters, and how it is expected to deal with them. This is a very urgent matter on which we need to have some kind of information.
§ But my main contention is that if there is a to be a Welsh Assembly—which, in accordance with the terms of the Bill, there may well be—then, instead of perpetuating this jungle in our administrative law, we should take the opportunity of devising alternative procedures to ensure that natural justice is done. I believe that the Government have failed to take this opportunity, and that the people who will suffer are the people of Wales. I beg to move.
§ 3.30 p.m.
§ Baroness STEDMAN
Although it may take a little time, the House may find it useful if I refer in general terms to begin with to what we see Clause 9 as trying to arrive at and then go more specifically to the Amendments moved by the noble Baroness. As she said, this is one of the key clauses of the Bill because this is what confers on the Welsh Assembly the list of the ministerial functions by or under statute that we identify in Schedule 2.
It is this provision which brings out most clearly the critical difference between this Bill and the Scotland Bill which we have also been discussing. In the case of Scotland it was legislative competence that was devolved, and areas of legislative competence cannot be described with any accuracy by relation to existing enactments because these merely exemplify the legislative action in a particular field at a particular moment. When it comes to devolution of executive functions contained in the statute, then it does become possible to obtain much more precise listing of the functions and there is no 330 need to fall back on any general description with the sort of uncertainty that we came face to face with from time to time in the Scotland Bill.
So, while the Scotland Bill makes great use of the concept of devolved matters, this Bill has no counterpart in it. It lists either individually or in blocks the existing ministerial functions which are to be devolved, and it offers no generic description of the functions or the groups of functions unattached to their parent statute. It is all very clearly laid out in the Schedules. The word "functions" in this case has to be analysed and understood. It is used in ordinary departmental practice to denote the areas of responsibility, so that there is a housing function, a planning function and so on. In a statutory context, it bears a rather more technical meaning—it means the powers and the duties, and indeed many of the enactments define the functions expressly to include powers and duties. There is sufficient judicial authority to make this unnecessary, particularly in the present context where the clear intention is to achieve a very wide, and we hope effective, devolution of ministerial responsibilities.
Perhaps we can accept at the beginning that the Bill proceeds on a very wide interpretation of the concept of function and runs rather beyond the plain powers and duties and takes in things which Ministers can do or things that can be done in relation to Ministers. The latter draft, of course, includes cases where perhaps some person has to serve a notice on a Minister. Ordinarily, it is these concealed functions which are dealt with specifically in Schedule 2, but a few have been dealt with by specific Amendments in Schedule 11 in order to achieve a precise result.
These marginal cases apart, the powers and duties tend to fall into two classes—the substantive and the ancillary. The substantive powers are the primary ones under which Parliament authorises action; the ancillary powers are the secondary or supplementary powers which are used only in connection with or for the purpose of one of the substantive powers. Perhaps a clear example of this is the one used by the noble Baroness herself—the power to hold a local inquiry. It exists only for the purpose of some substantial power.
331 In the context of Clause 9 the powers of whatever degree fall within the concept of functions. This leads to the practical difficulty to which Schedule 2 must constantly revert. Within the context and confines of any particular Act there may be some functions which are devolved and some which are reserved, and any related supplementary powers must therefore be made available equally to the Welsh Assembly in a devolved function and to the relevant Minister in the reserved function. This affects a great deal of the entry in Schedule 2.
The first column in Schedule 2 specifies the devolved functions, and it does so wherever possible by a block devolution of all the functions of a particular Act or in a group of Acts which are identified by their collective citation. Where this is not feasible it lists the individual provisions. The second column specifies the exceptions from the functions as identified in the first column. The exclusions fall into a variety of classes. There may be complete exclusion of particular functions otherwise comprised in the block devolution; for example, the Local Government Act 1972 (the functions under Sections 171, 198 and 200) and the qualified exclusion of other particular functions such as those exercisable in relation to reserved matters, those listed in Schedule 5 for which local authorities will continue to respond to the United Kingdom Minister and not to the Assembly, those exercisable in relation to other functions which remain the prerogative of United Kingdom Ministers; and those so far as are exercisable in relation to the accepted statutory undertakers—that is, undertakers which we have included in the definition in Clause 79(1) who still have to respond to United Kingdom Ministers—and those exercisable in relation to land otherwise than land which is held for the purposes of the Assembly. These are the kind of things which we shall be discussing throughout the Bill, but particularly in regard to Schedule 2 and Clause 9.
In general, Clause 75(1) has not been relied upon for the purposes of Schedule 2, and the Bill has been constructed on the basis that Schedule 2 should deal explicitly with all the relevant functions. As Clause 9 bites only on minsterial functions concerned by or under enactments, it does 332 not affect either the functions exercisable by persons other than Ministers where we have the definition in Clause 79(1) to include the Treasury, or the functions exercisable by Her Majesty under Order in Council or otherwise, or the functions exercisable other than by statute. Certain enactments contain powers exercisable by Order in Council transferred in a modified form to the Welsh Assembly by the Amendments in Schedule 11.
The position with regard to powers currently exercisable by United Kingdom Ministers, other than by statute, is that the powers that are to become exercisable by the Welsh Assembly are converted by the Bill into formal statutory powers under Clauses 10 and 11 which we will be discussing later. In the light of those, Clause 12 is in effect a new substantive function for the Assembly. The Assembly does not get prerogative powers in and around the area covered by the functions listed in Clause 9. Nothing of substance is withheld by this. Today nearly all the prerogative powers of any value have already been subsumed into formal statutory provision, and it is very rare for a Minister to be compelled to fall back on to powers which, on proper constitutional analysis, are truly prerogative in character.
Clause 9 is the source of the devolved powers and Clauses 10 and 12 are also an important source of devolved powers. We also have Clause 27. I am sorry that it is so complicated, but it links up. Clause 27, which concerns certain ancillary powers and various enactments which are amended in Schedule 11, will henceforth concern functions and orders under Clause 59 as to certain public bodies. Subsection (2) deals with the special classes, those few powers which are listed in Schedule 3 which are to be exercised concurrently by the Welsh Assembly and by a United Kingdom Minister about which we have some later Amendments to consider.
So far as the points which the noble Baroness raised are concerned, they were rather wider, I suspect, than we had initially expected. Amendment No. 42A, which the noble Baroness moved, would reserve the power of decision in all cases where a statutory inquiry is held or claimed. As the noble Baroness has said, such cases occur in a very wide number of fields, but not exclusively in planning. Perhaps her 333 fear is the dislike—apparent in a number of other Amendments—of the devolution of quasi-judicial powers. We have problems here. The noble Baroness asked me some fairly specific questions, to which I am not able at this time to give an absolutely correct answer. However, I shall look at what the noble Baroness has said and make sure that she has the information in good time before we reach the next stage of the Bill.
The noble Baroness asked me how many enactments in Schedule 2 relate to the power of direction and the power to hold an inquiry. There is no simple, arithmetical total. My pigeon post tells me that there are many such powers, but that at this time it is impossible to work them out and give their total. I was also asked who the Assembly will appoint to hold the inquiry. I believe that Amendment No. 43D, which initially we understood we were taking together with this Amendment, impinges upon this point. It is based on the supposition that an elected Assembly is incapable of taking the kind of decisions for which Parliament has decided that a public inquiry ought to be available. We do not think that this is right. We think that the Assembly would be able to discuss matters in general —as they do in another place, because they consented to discuss the Windscale Report in the full knowledge that the Minister would be influenced by their view.
In general, inquiries are held on matters of rather more local than national concern: the siting of new public works, motorway loops, compulsory purchases and so on. These are areas where everyone in the locality might be affected and ought to be able to have their say, the matter to be resolved at Assembly level in the full knowledge of all the facts. I hesitate to say that it is better for such matters to go to an Assembly, for the House might seek to put my job in commission! However, I strongly maintain that it is in no way wrong or improper for the Assembly to decide such matters. The whole purpose of the inquiry would be that a full and balanced public discussion could be held. And what better place is there for that to take place than an Assembly representing all the people of Wales?
If that is not enough, then there are the courts in Wales to see that fair play is 334 done. The Assembly would be bound by exactly the same rules of natural justice as are the Ministers of the Crown. Where an enactment of itself provides who shall chair an inquiry, clearly the Assembly will be bound by that enactment. In the case of all enactments that at the moment provide powers to Ministers of the United Kingdom, if those powers are devolved, they will be devolved to the Assembly and will be binding on the Assembly in just the same way. The noble Baroness ranged very much wider than that in her opening speech. I shall look at what she said and try to answer in much more detail the points which she has made.
§ 3.43 p.m.
§ Lord WIGG
May I ask the Minister a question. I thought that I had mastered the problem that she is posing by paying the closest attention to what the Lord Chancellor said on 23rd May. Perhaps it might help your Lordships if I read his words. He said at col. 833 of the Official Report:In Wales, where executive competence only is involved, it has been necessary to single out in each particular case the ministerial functions which are to be devolved, and this is done by listing the appropriate enactments which confer powers and duties, and that is set out in the lengthy—and, I must say, on the face of it, alarming—Schedule 2 to the Bill.".I was not put off by the word "alarming", but then I turned to the parts which interested me. I took the Acts mentioned and cut out the parts which are to be excluded. If those parts are to be excluded, they will have nothing to do with the Welsh Assembly. Then I proceeded to study what was left, in the belief that what was left was devolved within the field of executive competence only and would not involve any legislative powers. That is the difference between the Scotland Bill and the Wales Bill.
Then I began to get into difficulties about what this really meant. Not being a lawyer and not even having studied English—certainly not the classics—I began to get into difficulties about what "executive" meant. It seemed to me that "executive" meant an act of Government; therefore, it was the act of Government which was to be devolved; Whitehall was saying "Here is the Act. You can have the lot, except those matters which are mentioned in column 2. They are 335 excluded". Therefore I proceeded to concentrate, for better or for worse, on what was left. All that I am asking is this: not that I should now be understood but whether I have made a mess of it and whether I am wrong, because if I am wrong I had better go away and do some more homework.
§ Lord HYLTON
I wonder whether I could take a concrete example? Could the noble Baroness tell us whether the hearing of appeals under the Town and Country Planning Acts against the refusal of planning permission will be devolved or reserved?
§ Lord PARRY
It seemed to me that in moving the Amendment the noble Baroness begged the whole question of devolution. It was not simply a question of moving an Amendment to a clause in the Bill; the question was whether the Bill itself would win authority for the Secretary of State to devolve certain of his powers and whether, in that devolution of his powers, he would weaken the constitutional authority of the Mother Parliament. I hesitate to remind the Committee that this point has been made clear on a number of occasions. Probably the latest occasion was during our own Second Reading debate when I quoted the words, very car fully given in another place, of my right honourable friend the Secretary of State for Wales. Those words bear repetition in the context of what the noble Baroness said in moving the Amendment. When discussing the position of Parliament after devolution in Wales and the relationship between Parliament and the Assembly, my right honourable friend the Secretary of State said this:Let there be no question that a large number of powers and functions now exercised by myself and by my colleagues the Ministers will be devolved to the Assembly.".My right honourable friend went on to say:In other words, the Bill transfers certain executive responsibilities of central government to the Assembly, but Parliament will continue to legislate in these fields for Wales and the Members of Parliament will continue to be responsible for all primary legislation applying to the Principality.If we do not accept that, we beg the question of devolution itself. If we are not going to give responsibility to a responsible Assembly of the Welsh people and trust them adequately to safeguard 336 it, then we are saying that we do not trust the Welsh people with the devolved authority to which we paid lip service during other stages of the debate on this Bill.
If we also take the analogy which the noble Baroness offered, when she said that this small devolution—which is very much smaller than that for which many Welsh people would have asked and which is very much smaller than that amount of devolution which other federal Parliaments and other devolved Assemblies enjoy in other parts of the world—and that this measure of devolution is less than the amount that we were prepared to give to the EEC Parliament, of course, that is right. When we were moving authority from our native Mother Parliament towards another extra-Parliamentary and extra-national body we were most careful to see that there did not pass from the Parliament of Britain to the Parliament of the European Economic Community the real authority which should be vested in the people of Britain.
When we set out, as a result of a calculated appeal to the people of Wales, as a result of a request from the people—however much we might argue about what the nature and the strength of that request might be in various parts of Wales—to devolve authority to them, we are simply redistributing power within the United Kingdom. We are not weakening the mother Parliament; we are simply giving an aspect of power to the Assembly which we are setting up. I think that it is wasting the time of the Committee at this stage constantly to be going back to the suggestion that we are setting out, somehow, to cheat the British Parliament of authority which is, in any case, vested not directly in the Secretary of State, who holds that authority, but is administered for him by the bodies which I mentioned in the Second Reading speech that I made in this House. It seems to me that many of the powers of the Minister are not at the moment directly responsive to the authority of this Parliament or of the Welsh people because they are vested in nominated bodies.
If I understood correctly an appeal that was made by the Shadow Secretary of State at the weekend in Wales, it was that such bodies and the appointment of individuals to such bodies should be directly 337 subject to the people and should not be vested in the Secretary of State. I may be wrong in assuming that, because I was personally involved and my view of what he said might be clouded, but I believe we must approach these Amendments in honesty and knowing that they seek to give precise and careful devolved authority in the respects scheduled to a Parliament and an Assembly of the Welsh people which will be directly responsive to them, while the legislative functions will be safely held in the Mother Parliament.
§ Lord ELTON
Perhaps I may come to the aid of my noble friend in reply to that. I am not quite sure that the noble Lord, Lord Parry, has got it right. He is addressing himself to general principles and we are, in the Committee stage of the Bill, addressing ourselves to particular questions. Therefore the general principle is implicitly asked even when it is, in detail, begged. My noble friend said that this was an astonishingly complicated Bill and everything that everybody else has said except the noble Lord, Lord Parry, and particularly the noble Lord, Lord Wigg, has borne this out I think few would be disposed to contend it. It is our duty to find out what the effects of this will be in particular cases, and the most pertinent question of all has come from my noble friend Lord Hylton as to what will happen in a particular case.
Secondly, I think that the noble Lord, Lord Parry, and his friends perhaps look at this problem from the opposite direction to us: they think that we are seeking to reserve to Parliament the powers which give it its grandeur, its importance or its effect. I see our duty as being the reverse of this: It is to see that the Welsh citizens are protected from a machine which may in fact not operate in the way they wish it to operate in order to bring devolution into effect. The function of this Chamber has always been to defend the individual against the State and the machine. In doing this, it may well appear that what we are trying to do is to say that we can do the job better than the Welsh. What we may be saying is that we believe that the United Kingdom Parliament can do it better than the Welsh Parliament.
What we all wish to establish is that this will be done (if it is to be done) to the satisfaction of the Welsh people, and 338 as I said at Second Reading, the protection of natural justice. We cannot know the answer to that question until we can read in Hansard what the noble Baroness has said in this context in reply to the speech of my noble friend, which I do not think begged the question; I think it asked a lot of vital and pertinent questions.
§ 3.54 p.m.
§ Baroness STEDMAN
With the leave of the Committee, perhaps I may take one or two of the points that have been raised. First, I am grateful to my noble friend Lord Parry for his general support of the Bill. Noble Lords opposite are right—he was dealing with it in perhaps a rather more general tone than we are dealing with it on these specific Amendments, but, so far as the general principles and the outlook as expressed by my noble friend are concerned, those are perfectly right. What the Welsh Assembly is able to do for the Welsh people and do properly, it should have the power to do, and for things in respect of which we need to keep some reserve powers for the Mother of Parliaments we must ensure that we have done so. I think that as this Bill goes on we shall get worried because we had so much discussion on the Scottish Bill about the executive competence and the legislative competence, whereas Clause 9 itself does not refer to executive powers. In fact, I do not think we refer specifically to executive powers as such in this Bill. Clause 9 devolves the functions of the Ministers as we have identified them in Schedule 2, which also includes the power to make subordinate instruments.
So far as the planning appeals are concerned, if the noble Lord will look at Schedule 2 on page 50 of the Bill, he will see a lot of information about the Town and Country Planning Act and the various things which are excluded. The general responsibility for planning appeals will be devolved to the Assembly. So far as the procedure for public inquiries is concerned, the Assembly itself will have no power to change the rules of the procedure for the holding of the public inquiry. The power to regulate the procedure is in Section 11 of the Tribunals and Inquiries Act and that is not devolved and will still be in effect, even with the Welsh Assembly.
§ Lord WIGG
I do not want to be tiresome but I am not going to leave this subject because the noble Baroness, Lady Stedman, has not answered my question. The question I put to her was this: Is she saying the same as the noble and learned Lord the Lord Chancellor said at column 832 on 23rd May this year, or is she saying something different? Clearly, the noble Lord, Lord Parry, is saying something different and we shall run into great trouble later on, which is something that I am not going to wear. He says, "Trust the Welsh people. The Assembly must have the powers and if you doubt the way in which they are going to behave then you are doubting the Welsh people". That may be logic for the noble Lord but it will not do for me because the Assembly is not a person, it is a thing; and a thing can only operate through humans. While I am quite willing, on paper, to devolve this to the thing, when it comes to operate and becomes flesh and blood, it will become a person. Because I doubt the thing, it does not necessarily follow that I am doubting the person.
What we are discussing here on the authority of the Lord Chancellor—and surely there is no higher—is that so far as the Welsh Bill is concerned we are dealing with executive competence only. In my terms "executive competence" means an act of government which is devolved. So we have whole measures which are devolved, with certain sections excluded. What I want to know is this: Are we discussing executive competence exclusively in the terms that were used by the noble and learned Lord the Lord Chancellor, and, if we are not, will the noble Baroness please explain the difference between herself and her noble and learned friend?
§ Baroness STEDMAN
Far be it from me to differ from my noble and learned friend in what he said on the Scotland Bill, and I cannot help wondering, even at this early stage of the Wales Bill but having spent some 20 days or something like that on Scotland, what would be the position if we were to have English devolution and they started telling us that we were not competent to run our own Assembly. We had that throughout the Scotland Bill and we are beginning to get it now in regard to this Bill.
§ Lord ELTON
This is absolutely the point, that we would say the same because we speak for two bodies: at one end is the United Kingdom and at the other is the individual in Wales or Scotland or England. If it affected them, we should have no right to object to the Scots saying that a decision ought to be taken by them with us rather than by us alone. I cannot see that there is any unpleasant imputation in this.
§ Lord PARRY
As my noble friend has been interrupted perhaps I may take the opportunity to say that, logic or otherwise, I find it difficult to distinguish between a "thing" called the Parliament of the United Kingdom and an Assembly which is a "thing" in wales. Is it in fact assumed that this House or the other place is superhuman while the Assembly in Wales is simply a collection of humans?
§ Baroness STEDMAN
I think we have to accept that in this Bill and in Clause 9 we do not draw the distinction between legislative and executive competence. There is no legislative competence so far as the Assembly for Wales is concerned. All that we are doing, by means of the Schedules, with the powers that we are giving it and the powers which are being reserved, is to empower that Assembly to administer the legislation which is being devolved to it. I think perhaps that is as simply as I can put it and I hope it meets the point raised by my noble friend Lord Wigg, although I have a feeling that it does not.
§ Lord WIGG
Perhaps I can make it even more simple. I am not speaking about juxtaposing the Assembly at Westminster and the Assembly in Wales. I am drawing a distinction between the Assembly and the individual: and the individual, whether in fact he is the victim or the beneficiary of Westminster or Cardiff, is so as a result—so the Lord Chancellor has said—of an act of "executive competence", to use his words. All I want to know is whether, as the Lord Chancellor said, we are, so far as Wales is concerned, discussing only executive competence and nothing else. All I want to know is whether the noble Baroness stands by what the Lord Chancellor said, or, if not, what is the difference. Perhaps the noble Baroness will be kind enough to say, yes, she 341 endorses what the Lord Chancellor said. I am only asking for this reason. I have tried on this occasion, and on others, to do my homework, and, perhaps the noble Baroness will agree, not altogether without some success. I propose to go on doing it. If in fact she is altering what the Lord Chancellor said and we are discussing something more, or if there are grades of executive competence, then I ought to go out and do some more homework.
§ Baroness STEDMAN
With the leave of the Committee, may I be very brief and say, yes, the Lord Chancellor was right.
§ Baroness ELLES
I should like to thank the noble Baroness for her very full reply. Indeed, she answered more questions than I put and for that I am grateful. There were one or two questions which she was not able to answer, even though I put them. I shall await her reply, which I shall hope to get before the next stage of the Bill, and I quite understand that she is not able to give the answers now.
There was one point which I took, and I hope I have got it right; I shall read it very carefully in Hansard tomorrow. I think the noble Baroness said that the Welsh Assembly would of course uphold natural justice just as strongly as would any other body or person. I question this argument, because it is not a question of natural justice in a political elected Assembly any more than in any other political assembly; it will be a matter of politics, and a matter of politics is not always a matter of justice, whether we like it or not, and I say this regardless of Party.
This is what concerns me, and it was the point of this Amendment. I am concerned that, if an aggrieved individual goes to the Welsh Assembly, he should, as a result of an adverse decision by that Assembly or by a local authority, have no certainty of getting justice. It is not a question of whether he will get it or not, but of whether he will be sure to get it and whether it will be seen to be just. Therefore, at some stage, perhaps either in writing or at the next stage of the Bill, I should like some answer to this particular point. In thanking the noble Baroness for her assistance in understanding this particular 342 clause and this Amendment, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.4 p.m.
Lord SKELMERSDALE moved Amendment No. 43:
Page 6, line 18, leave out subsection (2).
§ The noble Lord said: I beg to move Amendment No. 43. The last time I had the pleasure of seeing the noble Baroness across this Chamber we fell into some degree of amiability on linked ideas as to how a particular Bill should proceed. On this occasion I am afraid the omens are not quite so good, but we shall see how we go with this one.
§ As your Lordships can readily see, this is a rather blunt probe because it begs the question about Schedule 3 to the Bill, which talks about the dual responsibility of the Secretary of State and the Welsh Assembly in certain areas of legislation. It is a rather blunt probe, one could say, in order to push—I hope the noble Baroness will not take offence at this—at the soft underbelly of the Government. However, it has now, since I put down the Amendment, got some rather sharpened edges. I would say that it is still not intended to draw blood; it is very much interrogative. The sharpened edges I refer to are Amendment No. 61C by the noble and learned Lord the Lord Chancellor on the Local Employment Act 1972—and I shall have something to say about this in a minute—and also Amendment No. 61B which not only duplicates the noble and learned Lord's Amendment but also adds the Town and Country Planning Act. Again, I am sure that the noble Baroness will have a good deal to say about this a little later on in the proceedings.
§ The point of my Amendment is to clear up why exactly there needs to be this dual responsibility, how it comes about that in certain areas of the law there need to be two people looking at exactly the same aspects of legislation, where there was only one before. I should have thought that there was a golden opportunity for conflict between the Secretary of State and the Assembly, and not only if the two are of different political persuasions. This has been constructively argued, both last week in the first stages of the Committee stage of 343 this Bill and at Second Reading. In any event, the Assembly will be looking at particular subjects exclusively from a Welsh point of view, and the Secretary of State, through the Cabinet, has a responsibility to the whole country, although I should be the first to agree that the Welsh people are his priority. It follows that they could well take conflicting decisions in relation to these powers in Schedule 3.
§ There is another important point, which is that most of the concurrent powers relate to finance. For example, the first one on the Schedule, Section 2 of the Commissioners of Works Act 1852, gives the power to buy and sell public buildings, public works and land, including woods and forests—an area in which I certainly do not want to get involved at the moment. My question here is this: is it not anomalous for such funds to come out of both the national and the Welsh exchequers? Perhaps they will not, and I hope the noble Baroness will be good enough to tell us. For my own part, I would assume that the relevant body which initiates the motion will pay for it. Is this correct?
§ A third and last point on this subject is that it seems to be a very complicated way of going about things. Who should the public go to for clarification, the Welsh Office or the Assembly? Is it really necessary to have concurrent powers at all? Cannot each and every one of the Acts be the responsibility of either the Secretary of State or the Assembly? In other words, is it beyond the wit of man, or perhaps the draftsman, to provide in this Bill that powers are either devolved or not devolved?
§ I said that I would say something about the Lord Chancellor's Amendment. He, it seems, has decided to clean up this rather grey area in at least one respect in his Amendments Nos. 61C and 57B. These Amendments refer to the Local Employment Act 1972. It seems that the noble and learned Lord has had such a major change of heart that he is not only proposing to remove the sections from dual responsibility under Schedule 3 but not to devolve power at all under Schedule 2. I beg to move.
§ Baroness ELLES
I should like to support this Amendment moved by my noble friend, and to add one or two further points relevant to Clause 9(2) 344 of the Bill in relation to Schedule 3. There are matter which have been debated in the Scotland Bill and which of course affect the Welsh Bill. I shall be very brief, because I know we have a great deal to get through today. I think the attention of your Lordships should be drawn to the fact that some of the powers to be exercised concurrently by the Minister and the Welsh Assembly are similar and identical to powers to be exercised not only by the Minister and the Welsh Assembly but also by a Scottish Secretary. Therefore, a situation will arise where Ministers will have to take decisions, or may be in a position to take decisions, and they will have to take the view of the Scottish Secretary as well as of the Welsh Assembly.
What I should like to put to the noble Baroness is, how is that to work out in practice? A very obvious case in point is, for instance, the Minister who is responsible under the Transport Act for making grants for research and development. He has to decide about making grants for research and development in transport. Supposing the Scottish Secretary agrees that a certain scheme should be undertaken and research carried out and the Welsh Assembly also decides that certain research and development studies should be made, but the two schemes are in conflicting terms, on conflicting conditions and in completely different circumstances. Who, out of all these various bodies, actually takes the final decision? Do they take their own decisions? Is it a vast new way of spending masses of money throughout the country at United Kingdom level and in Scotland and Wales? That is the matter of concern and as set out at present it really becomes a matter of gross inefficient administration. I should be grateful, when I add my voice to that of my noble friend, if the noble Baroness would explain how she envisages all these problems will be worked out in fact and in practice.
§ Baroness STEDMAN
I explained at some length as regards the preceding Amendment the general principles upon which we have based Clause 9(2) and Schedule 3. The normal statutory powers will either be wholly devolved or reserved. However, the enactments in Schedule 3 contain special features which make it 345 necessary that they should be available for use both by a Minister of the Crown and by the Welsh Assembly. As the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Elles, have said, we had long discussions on these particular points when discussing Scotland. For example, Section 57 of the Transport Act 1968 contains the power to make grants for research into transport services. As both the Assembly and the Government will have responsibilities for transport services in Wales, both need to have access to the provision question.
In the case of a number of other provisions listed in Schedule 3, the Welsh Assembly will not have access to the powers concerned as a whole, because restrictions are placed upon them by virtue of the relevant wording in column 2 of Schedule 2. For example, Section 113 of the Town and Country Planning Act 1971, which is concerned with the power to acquire land compulsorily for the public service, is devolved by means of the entry for that provision in Schedule 2 on page 51. However, the devolution of the power is circumscribed by the wording in column 2 to the effect that the Welsh Assembly's powers extend only so far as they are exercisable in connection with that part of the public service for which it is responsible. However, the Minister of the Crown has access over the whole range of the powers—those parts devolved and those parts which have not been devolved.
In other cases, such as Section 57 of the Transport Act to which I referred earlier, both the Welsh Assembly and the Minister of the Crown will have full access to the power. So, technically, there is nothing in the terms of the Bill to prevent the Welsh Assembly using powers under such enactments as are listed in Schedule 3, within non-devolved areas or, for that matter, the Minister using his powers within the devolved areas. That is because of the difficulty of devising and drafting a scheme which would in all circumstances prohibit the one from acting in the other's area of responsibility in these cases. We think—as we did as regards the Scottish Assembly—that it is unlikely that the Welsh Assembly could take conflicting decisions in relation to the powers in Schedule 3.
In practice we believe that there will be reasonable co-operation between the 346 Government and the Assembly and that each will confine its use of the powers in Schedule 3 to those areas of its own responsibilities. I should remind the Committee—and the same point was made during the debate on concurrent powers in the Scotland Bill—that the majority of these powers are concerned with the provision of funds for certain activities such as research. The Government do not believe that the Welsh Assembly or the Ministers will be prepared to expend both effort and money unnecessarily just to cause difficulties for each other.
Some criticism has been levelled at the entries in Schedule 3 in another place and the noble Lord, Lord Skelmersdale, referred to the Lord Chancellor's change of heart and the Amendments to which we shall come later. However, we have taken note of the criticism made in another place and an exercise has been undertaken to reconsider all these entries and to ensure that they fully reflect the Government's policy. As a result, as the noble Lord has said, we have tabled Amendments to remove the entries in Schedules 2 and 3 for the Local Employment Act, 1972, and we have tabled others to include entries in Schedule 11 for Section 7 of the Historic Buildings and Ancient Monuments Act 1953, and Section 7 of the Local Employment Act 1972. Perhaps we can leave our detailed discussion on those matters until we reach the relevant part of the Bill.
However, the noble Lord, Lord Skelmersdale, was concerned with the Commissioners of Works. If the Assembly acquires land, then the Assembly will pay for it out of its funds. If it is agreed that the Government will need land for some purpose in Wales, then, after consultation, they will use their executive powers and will buy it. However, the land and buildings that are, at present, Government property, will pass to the Assembly on devolution. There should not be a great deal of cause for them to spend a great deal of money on land in Wales. However, we are quite sure, as we were as regards Scotland, that the two bodies will each have their own funds. Money is not so plentiful that either the Government or the Welsh Assembly are likely to have a terrific spending spree, because they both have funds which they can use for perhaps more or less identical purposes. We are reasonably satisfied that there will be collaboration and co-operation 347 between the Assembly and the Government in the use of these powers, as we are sure there will be so far as the Scottish Assembly and the Government are concerned as regards the Scottish powers.
§ Lord SKELMERSDALE
From what the noble Baroness has said, am I to understand that the person who initiates the action—whether the Assembly or the Secretary of State—will use their own funds to carry out the work that they have initiated?
§ Baroness STEDMAN
If the Welsh Assembly wants to carry out a specific project then, if it is within its devolved functions, it will take the decision, will provide the money and be responsible for carrying the project to a conclusion. If it is a joint project of something like research, an inquiry or something like that, then the project and the work will be decided jointly between the United Kingdom Ministers responsible and the Welsh Assembly. There will be some apportionment and it may be that in some cases it will be the Welsh Assembly that will be the agent for the two and perhaps in some cases, if the facilities are better, it may be the United Kingdom that will be responsible for it. However, whoever starts or initiates something will have the responsibility of carrying it through and paying for it.
§ Lord ELTON
The noble Baroness, Lady Stedman, has been helpful and forth-coming if not altogether reassuring. It might help to expedite matters if I were to bring in Amendment No. 43B at this stage and speak to it rather than make it a separate issue. As the noble Baroness will have detected, it is a means of persuading her to reveal a good deal of what she has already revealed about the actual purposes behind the provisions of this subsection.
The Amendment, in fact, operates as a grid to put over the existing grid in Schedule 3, thus making particular functions visible, and the device would be to ask the noble Baroness what is not visible that ought to be visible. What are the areas not listed in Schedule 5 where concurrent powers might be needed? I suspect that a good deal of what that was designed to reveal will be visible when 348 we read Hansard. However, I should like to take the opportunity of asking one or two further questions.
First, is it or is it not the case that the Welsh Assembly will be able to exercise concurrent powers with the Secretary of State in subordinate legislation? In other words, is there an area within this Schedule in which they can both make orders? If they can both make orders, what procedure is envisaged—and can we be sure that it will be implemented—to prevent orders in contrary senses being published on the same subject? Should it happen that contradictory orders are made and a person acts in good faith under the provisions of one order, only later to be challenged because it is contradictory to that laid down in the other, what indemnity is there for the person so caught in a case, which I think would interest A. P. Herbert if no one else?
I imagine that this must have been foreseen, but it is the most obvious anxiety, is it not?—that the two bodies (because, after all, the Assembly and the Minister are both bodies corporate) shall be empowered in the same area and will not sufficiently co-ordinate their actions. They may not be in headlong contradistinction with each other; they may be pursuing the same ends. But it is possible, is it not? that if you give two people equal power in any other sphere of life there is almost always the most appalling row until it is decided which of them has the final word. The device in the Bill seems to be designed to prevent anybody having the final word. Can we not overcome that awful eventuality before it arises? Maybe it will be possible to do so by legislation.
§ Baroness STEDMAN
The noble Lord has referred to, and based his last general inquiries on, Amendment No. 43B, which is to limit, as it were, the concurrency of the powers that are listed in Schedule 3 in so far as they relate to Schedule 5 matters. In other words, for a Minister of the Crown to retain power to do a particular thing, not only must it be under one of the nine powers listed in Schedule 3, but the proposed exercise must have to do with one of the variety of matters that are listed in Schedule 5. We have found difficulty in seeing, for example, how a power to acquire a historic building 349 can have anything to do with the matters which are listed in Schedule 5. Indeed, the only case where we have been able to think of an Amendment that could do anything other than destroy concurrency, is in relation to Section 177 of the Local Government Act 1972. That is the power to specify bodies in respect of which allowances are paid. It is true that this could cover certain bodies to do with such matters as the police. But the reason for making it concurrent is that it covers such a very wide range of bodies that it cannot easily be split.
So far as the orders are concerned, the Welsh Assembly will be able to make the necessary orders for these matters and powers which are devolved to the Welsh Assembly. Our Ministers will be making orders for those things which are reserved and which are still the responsibility of the United Kingdom Government. We do not think that there is any real conflict.
§ Lord ELTON
It might help if I explained my difficulty. The noble Baroness is adducing the principles of which I am fully conversant; that devolved powers are in the competence of the Assembly and reserved powers are not. We, of course, are looking at the Schedule which sets out the area where this is not the principle; but where devolved and reserved powers, as it were, are both exercisable. First, I am asking whether, in that area, there is a coincidence of order-making powers by both the Assembly and the Secretary of State. There may be or there may not be, but there is a limit to the amount of research that we carry out, and I think that it is a fair question to ask. Perhaps I have not asked it in a fair way; the noble Baroness may not have been sufficiently aware of what I am after from the drafting of my Amendment, and for that I may be at fault. But it is a real question and a real difficulty. I want to know whether the difficulty exists and, if it does, how those involved in it will be got out of it.
§ Baroness STEDMAN
The nine enactments listed in Schedule 3, are the enactments which confer the powers exercisable concurrently. If orders were needed to be made under any of these enactments, they would have to be made by co-operation and consultation between the two 350 bodies. I am quite sure that it would not be the wish of the Welsh Assembly or the United Kingdom Government to be pulling one against the other; they would try to settle this amicably. There is always a danger that these things may happen. I had not understood that that was the point of the noble Lord's Amendment. I shall be very happy to take another look at it. If I can come up with a more reasoned argument, I shall write to him before the next stage.
§ 4.25 p.m.
§ Baroness ELLES
Before my noble friend speaks to his Amendment, perhaps I could add to the confusion with which the noble Baroness is so ably dealing. She is being attacked on all sides on this very difficult clause, which gives us ground for concern, of course, where one has concurrent powers. The noble Baroness has not quite satisfied some of us—certainly not me—that there will not be an administrative mess between the Secretary of State's Department, which decides whether grants should be paid, for example, for research and development into some form of transport or public service, and the Welsh Assembly, perfectly justifiably, under its devolved powers expending money in such and such a way; and similarly with the Scottish Secretary.
Therefore, I should be grateful if, before the next stage of the Bill or possibly at the next stage of the Bill, we could have some explanation as to how this is envisaged in administrative terms, and the number of civil servants who will be involved in this exchange of letters and—if I may put it in ordinary parlance—"bumf", as to how these various concurrent powers are actually to be administered. As I think the noble Baroness will agree, many of the troubles will arise from administrative confusion; not from ill-will among those involved in making the decisions, but among the miserable and sad people who will have to put into effect the conflicting decisions by these various bodies exerting their perfectly lawful powers. Therefore, I should be grateful for some explanation on that.
As the noble Baroness touched on this point, perhaps I could raise it now. She referred to Section 113 of the Town and Country Planning Act 1972 where, as I understand it, the reserved functions are 351 the functions of the Secretary of State for the Environment who will be able to make compulsory purchase orders for certain public services. I understand that the kind of thing included would be the erection of telephone boxes, the Post Office not having its own powers to make compulsory purchase orders. It is clear that if appeals are made to the Secretary of State for the Environment, he has a certain neutrality in the situation because he is not directly involved with the original decision and, indeed, with the appeal.
But in so far as the public service which is to be administered by the Welsh Assembly is concerned, as I understand it, the Welsh Assembly will have powers to confirm its own compulsory purchase orders, particularly in relation to the public service: although, again, I understand that there is no definition of "public service". I assume that certain things are understood to be public and others are understood to be private, but I do not think that there is any legal or statutory definition of "public service". I should be grateful if the noble Baroness, in thumbing through her documents, could find one for us.
As I understand it—and perhaps the noble Baroness can either confirm or deny this—as the Bill is at present drafted, the whole of this exercise, which is the exercise of confirming a compulsory purchase order by the Welsh Assembly, could be done just by the leader of the committee which made the order under Clause 17. With all her experience of local government, does the noble Baroness think that this is a wise way of carrying on administration? We on these Benches are trying to make the Bill work; we are not—as the noble Lord, Lord Parry, tried to infer—attacking the Bill as a whole, though many of us, of course, have our reservations. But we are discussing matters which affect individuals and we should be very grateful, knowing the spirit in which the noble Baroness is dealing with this, for a reply either now or at a later date.
§ Baroness STEDMAN
I do not think that I can satisfy the noble Baroness in full this afternoon, but in so far as both the Welsh Assembly and the Secretary of State make orders, the Welsh Assembly cannot interfere with any order made by 352 the Secretary of State. So in that sense, where there are concurrent powers, the Secretary of State is the "Supremo", if one likes to describe him in that way. The local authority's goods and services is another case of a concurrent power, but here we think that there is not likely to be much conflict about it. We have sought to give specific protection where it is needed. I shall look at this again. I shall happily send the noble Baroness a copy of the kind of things we have in mind, so that she can see how we think this will work. Then perhaps we can have a little more agreement or further discussion at the next stage.
§ Lord SKELMERSDALE
My rather blunt probe sank in rather deeper than I expected. We shall certainly be most interested and will get far more from reading the Official Report tomorrow morning than I, for one, managed to take in this afternoon. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 43B not moved.]
§ 4.30 p.m.
§ Lord STANLEY of ALDERLEY moved Amendment No. 43A:
Page 6, line 21, at end insert—
("(3) The Assembly shall not exercise its powers of appointment of members of a body except after consultation with bodies representing interests affected by the functions of that body.").
§ The noble Lord said: This is the first of a series of Amendments which concern agriculture. As your Lordships know, agriculture as such, is not to be devolved, but I have learned to my cost, in your Lordships' House in particular, that agriculture does not just mean tilling the soil and breeding animals. It is affected by a great many outside factors, such as transport, land use, water, and indeed amenity for our basically urban and less fortunate brethren. Many of these outside factors that I have mentioned will be devolved to the Welsh Assembly.
§ I hope that your Lordships will appreciate that if I appear, for use of a better word, to "knock" the Welsh Assembly, it is only because I happen to believe passionately in the importance of agriculture and its right to be placed second 353 to none. I would take, and do take, a similar attitude to the Ministry of Agriculture, the Department of the Environment, local authorities, or any other person who, to put it crudely, wants to put his hands on my land.
§ In this Amendment the enemies, or the friends, to agriculture, if I may loosely call them that, are the nominated bodies: bodies such as the Welsh Commission, the Regional Land Drainage Committee the Welsh Water Authority, and a host of others specifically referred to in the Schedules. Perhaps the Committee will excuse me if I refer specifically to those bodies particularly concerned with agriculture. I hope that my noble friends will rectify this rather narrow approach. The purpose of this Amendment is to ensure that those people appointed to such bodies will have the interests, in my particular case, of agriculture, and in other bodies the interests of the respective interested parties, at heart: indeed, to make sure that these bodies will prove to be agriculture's friends, and not enemies.
§ I should be grateful of an explanation from the Government as to who will appoint members to these nominated bodies, and how they will be appointed. Am I correct that the Welsh Assembly will take over the appointment of all members who previously were appointed by the Minister of the Crown? Could the Government tell me—and I think it is rather a difficult question to ask of the noble Baroness—what proportion of the nominated bodies were appointed in this way, and what proportion will in future be appointed by the Welsh Assembly? Presumably the local authorities will still, as previously, make their share of appointments to these bodies; in particular to the Welsh Water Authority.
This is a most important point because in the White Paper, Our Changing Democracy, in 1975, in paragraph 255 it states:
The Welsh Assembly will provide, or nominate, the majority of the members of the Water Authority".
§ I think I am right in saying that the Secretary of State at the moment does not appoint the majority of the members to the Water Authority. I think the local authority does that. So here is a confusion that we should like cleared up. I have had a fairly rough time over the weekend being rung up by various bodies 354 asking this question, and I think for my sake and the Government's sake an answer as to how they would be appointed, and how many, would help us very much.
§ To keep on with why these people should be appointed from those who should know about this matter, you might think that I am being slightly blinkered and just putting on my farming spectacles. To a certain extent I am, and indeed I am trying to do so, but that is because certain of these bodies affect agriculture perhaps more than any other section of the community. These bodies require land and, as I told your Lordships at Second Reading, land is under the power of the Welsh Assembly and agriculture is not. Therefore, it is vitally important that if they are to work satisfactorily—and we want them to work satisfactorily —they must command the support of the agricultural community. I believe that the best way to achieve this is by consultation and representation from that community, and that is what this Amendment seeks to achieve.
§ I suppose I must declare, in common with most farmers, a naturally suspicious nature, and I cannot get over the fact that the Welsh Assembly will have a majority of urban Members. I am not objecting to it—not that it would do any good if I did—and it is right and proper that the majority should control, but I believe that when it comes to appointing members to the bodies which affect agriculture so vitally it must be right that, despite the fact that we are in the majority, it is our land, and it is our work, and it is of prime importance not just because it is ours but because without it our work, and the whole country in the long run, would suffer. I should have liked to table a far more demanding Amendment but I have decided otherwise, mainly in the hope that the Government can reassure me, or maybe age has dampened by farming zeal. I therefore hope that your Lordships on both sides of the Committee will accept the spirit of the Amendment, and perhaps even the Amendment itself. I beg to move.
§ Lord SKELMERSDALE
In rising to support my noble friend's Amendment I would pick up those passages of his speech where he said that his Amendment was not entirely devoted to agriculture, 355 because by looking at it one can see immediately that it has much broader aspects to it, and perhaps even more worrying aspects, than he has adduced. For example, can one take the Commission for historic buildings and works in Wales. I am sure that that is not its right title but I have not got my appropriate note to hand, and no doubt the noble Baroness will doubtless tell us what it is. As I understand it this is currently peopled, for want of a better expression, by architects, planners, landscape people; by people who are relevant to that particular body. The libraries set-up is another example of this which is peopled almost exclusively by specialists. There is nothing in the Bill, as I read it, that would stop the Assembly from putting non-specialists into those bodies. I should like the assurance of the noble Baroness that the situation as it has been pertaining heretofore will continue, and that these bodies will remain specialist bodies.
§ 4.38 p.m.
§ Baroness ELLES
I should like to support my noble friends in this Amendment. They have brought out some real difficulties that will face the Welsh Assembly in appointing people to the boards which have been referred to by my noble friends. For the benefit of your Lordships, may I just single out one or two further examples which fall to the patronage of the Secretary of State for Wales which come from a directory of paid public appointments made by Ministers, and to which I referred when we discussed disqualification for membership of the Welsh Assembly.
As my noble friends pointed out, it is not only a question that the people should be suitable for the jobs concerned, but there is a considerable amount of patronage in these appointments.
When you look at the Land Authority for Wales, you see that, at £6,500, the part-time chairman gets more than a Member of the House of Commons. I am sure that many Members of the House would feel, from the time they spend in their work, that they have earned considerably more than that. The Welsh National Water Development Authority part-time chairman receives £6,175. We 356 come to the Welsh Development Agency where the chairman, lucky chap, part-time, gets £8,500. The deputy-chairman, part-time, gets £4,800; and seven members, part-time, get £1,000. The chief executive and member, if he is to be appointed by the Welsh Assembly, is even luckier because full-time he gets £15,750. These are very well paid appointments. So the question is not only one of whether people are suited to them, but a question of people appointing their friends. Unless the Assembly has some measure of control, it will be "jobs for the boys", something which nobody in Wales or anybody else would accept; that seems to be the position on the face of it.
It would therefore be of interest to the Committee in general to be told how these appointments are to be made, who ultimately will be responsible for them, and whether it will be the Welsh Assembly as a whole, or the committee responsible for the relevant devolved subject, or could the leader of a committee—I say "could", and I am not saying he would; I am not making any imputations about anybody—appoint a friend of his? I am voicing the concern of my noble friends in asking the Minister for a reply on this important issue.
§ Baroness ELLIOT of HARWOOD
As my name appears above the Amendment, I wish to make a few remarks in support of what my noble friends have said. We must remember that the bodies about which we are speaking are very powerful. Like my noble friend Lord Stanley of Alderley, I am interested in farming and I know what a difference can be made by people with outside authority who, for example, want to drive a main road over one's land. I appreciate that such developments, certainly in England and Scotland, are subject to many inquiries and one must get the local authority to support such a move; but it is something that can happen and can be most inconvenient. I mention this to show that these outside bodies which are concerned with decisions of this kind are very powerful.
It is important that the people appointed should be expert to some degree in the subjects of the committees or commissions to which they are appointed. Perhaps "overruling" is too strong a word, but I should like to see some kind of authority 357 above the Assembly which could veto an appointment if it was considered not particularly suitable. Committees of this kind grow and multiply. Many years ago there was none, but now they exist and are apt to multiply, and it is therefore important that they should be carefully scrutinised. I feel there should be somebody with authority to veto an appointment if it is considered unsatisfactory. Frankly, I am not enthusiastic about increasing the number of such commissions and committees, because I am a strong believer in the democratic authority of the elected bodies, whether they be county councils or, as I said last night, Parliament.
§ Viscount MONTGOMERY of ALAMEIN
I too support the remarks of my noble friend Lord Stanley of Alderley and I wish to ask a specific question about the water authority. It is not clear as drafted whether the structure of the water authority will change, how many members there will be and what will be the relationship between the Secretary of State, who has previously appointed members to this authority, and the local authorities. Nor is it clear whether the Assemblymen in future will have a right to nominate people, whether those people will replace the people previously appointed by the local authorities or whether they will be in addition to them, because one could see the authority enlarging itself enormously and, as my noble friend Lady Elles pointed out, the powers of patronage are quite extensive. I also wish to defend the noble Baroness, Lady Elles, against any attack by the noble Lord, Lord Parry, who unfortunately is not in his place, because what we are trying to do here is not to beg the question but, rather, to put questions to seek clarification about what the noble Baroness, Lady Stedman, said is an extremely complicated issue. It is certainly complicated to simple folk like myself: I find myself considerably confused by it.
§ Viscount TRENCHARD
In supporting the Amendment, I particularly wish to support the point made by my noble friend Lady Elles in asking who will actually make these appointments. Is not the Bill as drafted equivalent to saying, for instance in the context of the United Kingdom, that Parliament will be responsible for the appointment of the chairman and members of the National 358 Enterprise Board? Appointments must be of an individual nature and surely a Member of the Executive, of Government —the Secretary of State for Industry, or whoever it is in the parallel I give—must be the person who has the duty to consult all interested parties, to look at the list of possible candidates, to look at their qualifications impartially and then to decide who should be appointed. At present I do not fully understand the situation which charges an Assembly with such appointments.
§ Baroness STEDMAN
Under the Government's proposals in the Bill, the Assembly will make the appointments to the various nominated bodies coming under its responsibility in exactly the same statutory conditions that Government Ministers have to comply with now; that is, that where the primary legislation requires that the persons to be appointed to any particular body must have special experience, such as in land drainage or agriculture before they are appointed to the regional land drainage committees, or in industry or commerce and so on before they are appointed under Section 2 of the Welsh Development Agency Act 1975, the Assembly will have precisely the same powers and obligations as the Secretary of State has now.
The specific legislation for a particular body may also sometimes provide for a certain number of members to be appointed after consultation with organisations representative of certain special interests. For example, four members of the Land Authority for Wales are appointed after statutory consultation with… such organisations as appear to … the Secretary of State … to be representative of local authorities in Wales".That obligation will now pass to the Assembly rather than the Secretary of State. There are other cases in which no such statutory obligation is imposed by the primary legislation, and the Government consider that in those cases it is entirely right, once again, that the Assembly should have the same discretion as Ministers now. The absence of any statutory requirement does not mean that there is no consultation with interested organisation. Just as Ministers today recognise the benefit of such consultation, we have no doubt, that the democratically elected Assembly with the electors watch- 359 ing very carefully what they are doing and how they are doing it and representing all the people in Wales, will certainly recognise the benefits of consultation of the sort that Secretaries of State have now.
The noble Viscount, Lord Montgomery of Alamein, referred to water authorities. What shall be the composition of the water authority is laid down, and if I were still wearing the hat which I wore for 30 years before I came to this House, the member for the local authorities, I might be arguing that local authorities did not have a big enough representation on the water authorities. But, as the noble Viscount said, the local authorities nominate and have a majority of members on the regional water authorities.
The Government oppose the Amendment, first, because where it is strictly necessary for appointments to nominated bodies to have regard to certain conditions, the primary legislation itself already imposes those conditions. The second count is that whereas the primary legislation now gives discretion to Ministers in making appointments, then devolution means that we must give equal discretion and place equal trust in the democratically elected Assembly. The question was asked as to what happens when there is an appointment: does the whole Assembly argue whether it should be Mr. A or Mr. B who should be appointed? That, too, is a matter for the Assembly to decide. Whether the Assembly delegates these powers to a sub-committee, to a group of people, to people who have specific interests in the matter, and how this is done, are matters for the Assembly to decide. Our Secretary of State does not do it entirely on his own. He consults; he takes soundings; he tries out names on all kinds of people for all kinds of jobs. I am sure that this is the kind of way the Welsh Assembly will work, but the Assembly will have to decide exactly how it puts this into practice.
§ Baroness ELLES
Before we leave this Amendment, I wish to ask whether the noble Baroness is saying that the Welsh assembly as a whole will therefore be responsible to the Welsh people for those who are appointed. Whereas the Secretary of State is identifiable as a 360 person who takes individual, ultimate responsibility both before Parliament and in Cabinet for his actions, the Welsh Assembly as a whole is a much more difficult body for anyone to attack when a question of discretion arises. Perhaps sufficient thought has not been given to the problem of the selection of people for what are, after all, very important appointments, bearing in mind the work they are expected to do, and, as I have pointed out, the salaries that they are to receive. There is not visible to the people of Wales a person who will be responsible ultimately for making this kind of decision.
It is all very well for the noble Baroness to say that it is the Welsh Assembly as a whole which will be involved, but can this really be satisfactory where it is necessary to make a choice? I am sure that in Wales there will be many people who are suitable for these appointments, and it may mean having to make a choice between individuals of equal capacity, equal understanding, and equal dedication to their country. I think that that will be a very difficult matter for an elected body to decide as a whole and be collectively responsible for to the people. I believe that we have not yet quite got the right answer. I hope that my noble friends will be considering this matter, and that perhaps at the next stage of the Bill we shall be given further elucidation. This is an administrative problem, as well as, in many cases, a problem of exerting discretion, and I believe that we have not yet received a satisfactory answer from the Minister.
§ Lord HYLTON
Would the noble Baroness agree that it might be better to pin responsibility for these appointments and for this patronage fairly and squarely on the chief executive of the Welsh Assembly? If that were done, then at least the public would know whom to attack if a bad appointment was made.
§ Baroness STEDMAN
I have no doubt that if the public were dissatisfied, the chief executive would be the first person to know about it, but I do not think that it is for us to lay down in the Bill that the chief executive shall be the responsible person. That must be a matter for the Welsh Assembly to decide.
§ Lord ELTON
Is this not delicate ground we tread? We must be careful 361 here. The noble Baroness has made the assumption—which I think many noble Lords in favour of the Bill are bound to make—that an elected body will behave in the same way, and will respond to the same restraints, as a Secretary of State. Is it not the principle of the Bill that if one trusts the Secretary of State to do something, one therefore trusts the Assembly? We have reservations about this, which become more important as the issues in question become more important. My noble friend Lady Elles has referred to the not inconsiderable salaries which the people appointed to the boards will draw. That is a perfectly valid observation, and there would be nothing gained by covering it up.
No one has mentioned the very large sums of which these boards will dispose. The Welsh Development Agency—which, I understand from reading the Bill, may in any case be subsumed into the Assembly, though I cannot see to what purpose—disburses an amount which many small countries would regard as a satisfactory budget, or revenue. Before we debated the Amendment, it seemed to me to be innocuous. It merely sets out the advice that should be taken by the Assembly before it reaches a decision. The noble Baroness has said that the Assembly is already under constraints under the principal Acts. It is a difficulty of dealing with this kind of legislation that we are but mortals and, with the exception of the noble Lords on the Front Bench opposite, we are all engaged outside the Chamber on other pursuits.
I have a question in mind which I think would not be unfair. I do not intend to ask it now, but the noble Baroness must be made aware that we may later be under a constraint to ask it. It would be fair to ask what are the restraints in each case in relation to the seven or nine bodies to whom this provision principally applies. We are concerned to see that there is nothing which may appear to be undesirable, unsatisfactory, or hole-in-the-corner in each case. I do not propose to ask that question, but I think that the noble Baroness should know the way in which our minds are working. We have here patronage. I am not making any suggestion as to the future, but I would regard an offer of the kind of job which been referred to as something at least worth considering, because it would 362 involve a considerable income. This amounts to patronage, and it is a matter on which we must be careful.
Those are the reflections that I have in mind, but I think we should all wait in order to read what the noble Baroness states in her supplementary written reply on this point, and I hope that she will be kind enough to provide my noble friend Lady Elles and myself with copies of the correspondence.
§ Lord SKELMERSDALE
My noble friend Lord Hylton made an admirable suggestion that there should be one person responsible for the appointments. In answer to this suggestion, the noble Baroness said that if an unpopular appointment was made, the chief executive would be the first person to know about the general dissatisfaction. In the present situation, in which the Secretary of State is primarily responsible, he is answerable to Parliament. This means that if pressure is brought to bear upon him, or his life is made unlivable, for one reason or another, he can either resign or he can be sacked by Parliament—to put it very bluntly. However, in the case of the Assembly, the situation is completely and utterly different because, as has previously been pointed out, there is nothing that the Assembly can do about an unpopular decision. The Assembly is not even allowed to dissolve itself. Therefore, the unpopular decision may have to be maintained for as long as four years, until a new Assembly can come into being. Has the noble Baroness any advice to offer on that situation?
§ Lord GLENAMARA
Is this not a great deal of fuss about nothing? Would this not work in exactly the same way as what happens when a large local authority appoints a chief officer, or when it nominates someone to serve on one of the very bodies we are talking about here? Local authorities are doing this all the time. The usual mechanism is for a sub-committee to make a selection, and for the full council to confirm it, and I imagine that the Welsh Assembly would work out that kind of mechanism for itself. This kind of thing is perfectly well understood, and works perfectly well.
§ Viscount MONTGOMERY of ALAMEIN
I want to take up with the noble Baroness a point relating to the water 363 authority, as this is still not quite clear. She said that at present the local authority has the majority, but it is not quite clear what the position will be in the future. I am not quite clear whether those appointees nominated by the Secretary of State will be replaced by those of the Assembly, and where that would leave the authorities. Will the local authorities then have an increased number of places, which would still give them a majority, or will the Assembly become a kind of superior local authority, rather in the way that the noble Lord who has just spoken mentioned, with the result that the Secretary of State's appointees would disappear within the Assembly? It is not really clear how this will work in the future, though it is quite clear how it operates now.
§ Baroness STEDMAN
We shall be dealing later with a series of Amendments concerning water, and no doubt we shall then get into much deeper detail than we are in at present. However, my understanding would be that those appointments which are now made by the Secretary of State would be made by the Welsh Assembly, and the local authorities would still continue to make their share of the appointments from their nominations.
§ Viscount TRENCHARD
I should like to ask whether the parallel given by the noble Lord, Lord Glenamara, is a correct one in relation to the appointments by local authorities. Does not what the noble Lord mentioned really involve the appointment of servants of the local authority, such as the chief engineer or a works engineer? Is that really a parallel with the appointment to boards—such as the Welsh Development Agency—which are the subject of Acts of Parliament, which have very considerable functions, and which involve the appointment of members who are not professional executive civil servants, but are members of boards, with their functions very wide-ranging and very powerful?
§ Baroness STEDMAN
The posts to which local authorities appoint the officers referred to by the noble Lord are, of course, permanent appointments to the authorities, and, for the most part, carry very much higher salaries than those quoted by the noble Baroness for the people doing the supposedly part-time 364 jobs on the boards. As I would see it, my noble friend behind me is quite right: the appointments would be made and the Assembly would confirm the appointment before it was made, and then, as is the Secretary of State now if he makes a duff appointment, they are stuck with it for a period of time.
§ Lord STANLEY of ALDERLEY
We seem to have discussed this fairly deeply, and rather more deeply than I thought it would go. I must say that I am still most unhappy about one point. It is this. Let me give your Lordships a perfect example. At the moment, I believe the large majority of appointments to the water authority are made by the local authorities, and the point that concerns me is whether the Welsh Assembly will be empowered to say, "From now on, we are going to take some of those appointments away and make them ourselves". I am not happy, and I am not sure that the noble Baroness is happy, about this. However, we have another Amendment, as the noble Baroness will see, at No. 43E, which in fact proposes exactly this; and if the Government can agree to that it will put my mind very much at rest. Meanwhile, although I think I should say that we have obviously not thrashed this thing to an end and there are further questions to ask, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.4 p.m.
§ Lord STANLEY of ALDERLEY moved Amendment No. 43C:
Page 6, line 21, at end insert—
("(4) The Assembly shall not exercise functions of appellate or quasi-judicial review of any decision made by the Assembly or any committee of the Assembly.").
§ The noble Lord said: This Amendment follows the same line of thought as that in the name of my noble friend Lady Elles. However, I think I will bring it forward once again as there was a lot of discussion on that Amendment, and also for another, specific reason. The thought behind this Amendment is that it could stop the careless requisition of land; and its intention, also, as my noble friend said, is to make sure that the Welsh Assembly are not put in the invidious position of acting as judge and jury.365
§ The Welsh Assembly will have powers of compulsory purchase, as we have already said, under the powers which the Secretary of State now has and which will have been devolved. I should like, for simplicity's sake, for my own sake and also for the sake of the ordinary person, to give an example of how I think it would work. I am going to quote as one example the New Towns Act, but the Forestry Act, too, could be quoted, and also the Highways Acts 1957 and 1971. But let me take the New Towns Act as a case in point.
§ As I understand it—and I should like to be corrected if I am wrong, which is why I am giving the example—the Welsh Assembly would be empowered to draw up a plan for a new town. This would naturally involve the taking of agricultural land. Under the Act the Welsh Assembly would have to order a public inquiry, and this would presumably be conducted by an officer of the Assembly. I should like the Government's view as to whether that is correct, and whether the person conducting the inquiry will be a paid official and not a Member of the Assembly. That is not made quite clear.
§ The inquiry having been completed, the report will, as I understand it, be sent to the Welsh Assembly; but, as I read the Bill, it need not be accepted by the Assembly. Indeed, the report could be accepted or refused by a committee that was formed from the Assembly to look after the particular matter, or, as I understand it, it could be accepted or refused by just one person, the chairman of that committee. If it is then decided to go ahead with the new town, a final blow to me—the farmer whose land has been compulsorily purchased—is the fact that it is possible for the chairman of the committee which voted for it originally and then judged on it and said it should take effect to make himself chairman of the board of the new town—a somewhat unhappy relationship, I feel, between the farmer and the person in question. I know I am stretching the imagination a bit, but I understand that that is what could happen.
§ I shall not go on any longer because we have already had a good discussion on this, but I hope I have explained my fears —and, so far, the noble Baroness has not entirely quelled them. They are, first of 366 all, that land could be compulsorily purchased by the Welsh Assembly, and that land is precious; and, secondly, that though the compulsory purchase order would be instigated by the Welsh Assembly yet at the end of the day it would be the Welsh Assembly or, indeed, one single chairman of the committee which had instigated the compulsory purchase proceedings who would sit in final judgment. For simplicity's sake, and for the sake of justice by way of providing effective safeguards against compulsory purchase, I think that this is a dangerous thing.
§ The noble Lord, Lord Parry, has made some very telling points, and I understand what he is saying, but I do not really take his point about this. The Assembly, so far as I as an individual am concerned, is the same as a Government Minister or a local authority; and as a farmer whose land is being purchased, or as an individual, I want to see that justice is being done. I fear that, as it looks to me at the moment, the chairman to whom I have referred is not the same person as the Secretary of State. He is very much closer to me. He may, alas!, be from South Wales, which does not always get on well with North Wales, or vice versa. Hence, there will be a much more individual feeling involved. I want this person, as I am sure the noble Baroness does, to convince me—the awkward farmer whose land is being taken—that this is being justly done. At the moment I am not at all happy. I beg to move.
§ Baroness STEDMAN
In many of the subject areas which are covered by the enactments which we have listed in Schedule 2 the Ministers are currently responsible for deciding appeals or considering objections from persons affected by the decisions or the proposals of local authorities or nominated bodies. The Assembly will take over this responsibility from the Minister by virtue of Clause 9. In relatively fewer cases, where the legislation so provides, the Minister is responsible both for initiating a proposal and for determining any objection or appeal to which that proposal may give rise. This is the case with things like draft orders establishing the line of new motorways and compulsory purchase orders for the land which will be required, and appeals against the refusal of planning 367 permission where local planning authorities have acted on the direction of the Secretary of State, acting in his capacity as highway authority, to acquire land for a trunk road. We admit freely that there has been a certain amount of public disquiet (although this has been in England rather than in either Wales or Scotland) at this situation, principally in relation to motorway proposals. As noble Lords will know, we have had demonstrations at recent public inquiries, and we are hoping to reform some of those as a result of the Leach Report.
The basic approach to the Wales Bill which the Government have adopted is to set up an elected all-Wales Assembly with full executive powers in the devolved fields. To achieve this, the Bill gives the Assembly exactly the same powers and duties in these fields as Ministers now exercise. In other words, with very few exceptions the Bill does not change the existing powers on highways or on town and country planning law; it only transfers those existing powers by substituting references to the Welsh Assembly for the present references to Ministers. The Amendment which the noble Lord has moved departs from that approach, because it has implications of principle for the law in England as well as Wales, which I shall come to shortly.
First, it may be helpful if I give some examples of the sort of case which I think the noble Lord has in mind. For example, the Assembly may have proposed a line for a new motorway, taking up some farm land in order to do it, and they may have to consider objections to the proposals; and certain kinds of planning appeals. In the Government's view, it is essential, if the Assembly is to act as a responsible body and be responsible to the political wishes of all those people living in Wales and if it is to take its proper place in the constitutional structure of the United Kingdom, that it should be accorded the full executive power and status of Government and the wholehearted trust of Parliament in the things which have been devolved to it. As I have said, the Bill proposes to give to the Assembly in the devolved fields precisely those appellate duties which are now exercised by Ministers, in most cases the Secretary of State.
368 The noble Lord has implied that this means that the Assembly is judge and jury in its own case; but the Assembly will do precisely no more and no less than what the present law imposes on our Ministers. The noble Lord may say that it is wrong and the noble Lord, Lord Skelmersdale, is shaking his head; but what Parliament has required and approved is what happens now and what we propose to transfer to the Welsh Assembly; and if the law were to be changed—and I am sure that the House would not expect me to be able to speculate on that—then at this stage it would be right surely to make the same sort of change for England and Wales together. In the meantime, it cannot be right to give the Assembly the policy responsibility for highways and other matters involving public inquiries and planning, on the one hand and take it away with the other by removing the right to make the ultimate decisions on its own policy. I think that we might perhaps be tempted to try to use the Wales Bill as a vehicle for making changes in the law which we do not like as it stands at the moment. I believe that it would be wrong to try to do that in this Bill.
§ Lord SKELMERSDALE
The noble Baroness has said that the situation as it pertains at the moment will be the same under the Welsh Assembly; but, as I said on the last Amendment, I contest that to the hilt. The Secretary of State is answerable on any one day of any year to Parliament. The Welsh Assembly is answerable to no one but itself for a period that may be as long as four years, although I agree that it probably will be an average of only two years. That is the fundamental difference. I think that this is a danger around which it should be possible to devise a way.
§ Lord HYLTON
When I heard the noble Baroness replying on Amendment No. 42A, it seemed to me that my noble friend's Amendment No. 43C was extremely necessary—and necessary because of this question of natural justice. Now, in replying to Amendment 43C, the noble Baroness has acknowledged that throughout the United Kingdom there is very considerable disquiet on this matter of motorways since the Minister appears to be not only the proposer but also, ultimately, the judge. Surely, when we 369 are attempting a great measure of reform for Wales, as is the case with this Bill, it should be possible to hand over something better than the present unsatisfactory state of affairs!
In this context, I should like to ask whether any advice has been sought from the Council on Tribunals, a body particularly concerned with natural justice in administrative law. If it has not been sought, could it be sought even at this late stage? Unless the noble Baroness is able to be rather more forthcoming than so far she has been, I hope that my noble friend will press this Amendment.
The Marquess of TWEEDDALE
May I say to the noble Baroness that when she accuses us of using this Bill to try to alter things that should not be altered, I hope that she will hear that in mind when we come to page 29, Part V, Clause 71 of the Bill.
§ Baroness STEDMAN
I was not accusing anybody of trying to do that. I said that there was a possibility that we might get into the danger of trying to change the law in the whole land and of using this Bill to do so.
§ Lord STANLEY of ALDERLEY
We have had a greater discussion than I expected. I thought it had ended probably with the Amendment of my noble friend Lady Ellis. I must say that I am still unhappy. The noble Baroness gave me the encouragement that, like me, she is not entirely thrilled with the present procedure in England over motorways. I speak with another hat, having a motorway proposed over my Oxfordshire farm at the moment. I should like to ask her whether, if in future some different procedure is decided upon in England over, say, motorways or whatever, that will naturally become a part of the Welsh Assembly's procedure or not?
§ Baroness STEDMAN
If it is primarily legislation which is amended, the necessary arrangements will be made to devolve the amended primary legislation to the Welsh Assembly.
§ Lord STANLEY of ALDERLEY
I thank the noble Baroness. At the moment I think that the question is a deeper one than I thought it would be. I should not 370 like to press this Amendment. I can see the problems which would be involved if Wales had one system and England another. I think that we shall come back to the point. I see that it arises all the time, like the nominated bodies. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.15 p.m.
§ Baroness ELLES had given Notice of her intention to move Amendment No. 43D:
Page 6, line 21, at end insert—
("( ) In this section "statutory inquiry" means an inquiry or hearing held or to be held in pursuance of a duty imposed by any enactment or any statutory provision having effect under any enactment.").
§ The noble Baroness said: I had touched on this Amendment when were dealing with Amendment No. 42A. It was in order to define the statutory inquiry that I had put down Amendment 42A. I am happy to say that the noble Baroness answered one of the queries that I had with regard to statutory inquiries, in relation to the procedure. She said that Section 11 of the Tribunals and Inquiries Act 1971 would apply to the statutory inquiries whoever set them up, the Minister or the Welsh Assembly. That was already some assurance. There is another point on which she is going to write to me. I shall wait until I get further correspondence from her on this and, therefore, I do not propose to move this Amendment.
§ Lord STANLEY of ALDERLEY moved Amendment No. 43E:
Page 6, line 21, at end insert—
("( ) The Assembly shall not exercise any power of appointment of members of a body unless that power had been conferred on a Minister of the Crown before the enactment of this Act.").
§ The noble Lord said: I understand that the noble Baroness is going to accept this Amendment because she said previously that the number of nominations by the Welsh Assembly were the same as those by the Secretary of State. I should merely like confirmation of that. I beg to move.
§ Baroness STEDMAN
The noble Lord is under a misapprehension. I was not proposing to accept the Amendment. 371 We can see no reason to limit the Assembly powers in the way that this Amendment proposes. One of the basic purposes of the Bill is to increase democratic control over public bodies. One aspect of that control is appointments. In this sense, the appointments now made by the Secretary of State will be made by the Welsh Assembly or by whoever they decide to devolve to—a Committee or someone—to make those appointments on their behalf. It would be wrong to enshrine in this Bill the present position in every respect, whether or not the governing enactment relating to the body in question permits it to be changed or not. Where the statute gives room for change, that should not be taken away. But where it is defined in primary legislation, the same powers will rest with the Assembly as now rest with the Secretary of State. There is no reason to suppose that appointments made by the Assembly will be any less attuned to the needs of the body concerned than those made by a Secretary of State at present. Given the Committee structure of decision-making in the Assembly, there will be ample opportunity for expertise of all kinds both inside and outside the Assembly to show itself.
If the Assembly can be trusted to make the appointments which are made by Ministers now, it seems perverse that they should not be trusted with any others which the statute concerned enables them to create or to take over. The Assembly will be a directly-elected body and, in the Government's view, we shall not be helping the people of Wales (indeed, we might be insulting them) if we suggest they are not capable of making their own nominations where they have that power.
§ Viscount MONTGOMERY of ALAMEIN
If it may, I should like to press the noble Baroness a little further on the matter of nominations. Going back to the previous point, if, as I understood from a previous Amendment, all the powers of the Secretary of State are to be devolved to the Assembly, this means that the Assembly will have enormous powers of nomination and could ultimately take control of certain statutory bodies within the Principality. If they do that, the way that those statutory authorities developed could take a direction completely tangential to that in other parts 372 of the United Kingdom. This would be detrimental where the type of authority—it may be water, land drainage or highways —is of national significance. Surely, one must get a state of confusion arising thereby because the Assembly must rapidly get into conflict with what were the powers delegated to, or in the hands of, the Secretary of State. I can see confusion developing at a much earlier stage than one might have expected.
§ Lord ELTON
While I can see great merit in this Amendment, I understand some, though not all, of the fears of the noble Baroness. They might be allayed if there was a slightly more precise description in the body referred to in the Amendment. We have not decided whether it is a statutory or nominated body; it is simply a body. If that were taken literally, it would be a considerable curb on the rights of the Assembly. The principle that is intended to be enshrined in the Amendment may not be as offensive as the noble Baroness supposed it to be if the Amendment is redrawn more particularly. I should not like to commit myself on this issue, but I think it wise to take the opportunity to work this through before taking it too far.
§ Baroness ELLIOT of HARWOOD
If the Assembly is taking over all the appointments made previously by the Secretary of State and has no limit on the number of appointments it may make or committees it may form, surely we are opening ourselves up to a proliferation of bodies about whose functions we will not know. We know about some of them, and I should like to see some limitation placed on the Assembly's powers to create these types of organisation, as I am not greatly enthusiastic about this aspect.
If the whole authority is moving from the Secretary of State for Wales to the Assembly, what happens if the Assembly makes appointments which do not fit in at all with the United Kingdom and with English/Welsh unity on the Border? There is a lot of overlap between functions which are Welsh on one side and English on the other. One does not want a policy which divides the carrying out of functions between England and Wales when the same subject is under discussion, whether it is water, forestry or whatever it is.
One wants these bodies well cognisant of what is happening in England, as well 373 as of what is happening over a frontier which is not very well defined. We know it is not a frontier in the sense of frontiers in Europe or elsewhere. We are leaving the Assembly without any check, and without any power of removing an unsatisfactory person, for instance, who becomes the head of one of these bodies. I should have thought that the Secretary of State as well as the Assembly should have some authority in these matters.
§ Baroness STEDMAN
In the statutory bodies to which we referred earlier, the interest to which the Secretary of State at this time must have regard when making appointments is laid down. Those same restrictions will pass over when the power to make policies moves to the Welsh Assembly. So far as water is concerned, they will need to have regard to people with special interests, such as agriculture, land drainage and so on, and the Welsh Development Agency will need to have regard to people who have particular business interests and special qualities to offer. Those same restrictions will be on the Welsh Assembly. The noble Lord, Lord Elton, has a point that the Amendment is too widely drawn at the moment, and perhaps the noble Lord, Lord Stanley, might care to reconsider the Amendment. I cannot guarantee that in future I shall be able to give him a different answer. I may be able to expand my remarks and to allay his fears. At the moment "a body" is a little vague and we ought to say whether or not we are talking about statutory bodies.
§ Lord STANLEY of ALDERLEY
I should like to thank the noble Baroness, first for her usual charm in answering; and, secondly, much to my surprise, she has not confused me. She has worried me considerably more than when I came into the Committee today. Obviously, I must look again at the original statutes to see exactly what they say. I usually get these secondhand; I am sure no other Members of the Committee do so. I am not happy, and when I look at the statutes and talk to people on these boards about how they work I do not think that they will be entirely happy. I will leave the matter because it is too big a subject for me. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.374
§ 5.26 p.m.
§ On Question, Whether Clause 9 shall stand part of the Bill?
§ Lord CULLEN of ASHBOURNE
Before we leave Clause 9, I should like to ask the Government how their thinking has developed on the subject of tax raising powers. In the White Paper, Our Changing Democracy, the Government seemed not to be averse to the Scottish Assembly having power to levy limited additional taxation. During the Report stage in your Lordships' House on the Scotland Bill, on Monday of this week, an interesting debate occurred on this subject from which it was evident that the Government have not changed their mind. But so far they have not been able to come up with any practical ideas.
I appreciate that the position in Wales is different from that in Scotland, since the Welsh Assembly will not have legislative powers. I take it therefore that there will be no question of the Welsh Assembly being given such powers. I shall be grateful if the noble Baroness will confirm this. If this is the case, I am concerned as to what will happen when, in due course, the Scottish Assembly comes forward with suggestions, as I have no doubt it will. Is not this going to cause friction between the Welsh and Scottish Assemblies?
§ Baroness STEDMAN
My understanding is that the position is as set out in the White Paper. We are hoping for consultations and suggestions from noble Lords opposite and from any other bodies which are interested. I will check back on exactly what is said in the White Paper and how it reflects on this issue. I will communicate with the noble Lord before the next stage.
§ Lord LLOYD of KILGERRAN
I have listened carefully and in silence to this long debate on the Amendments to this key clause, Clause 9. I have admired the able, conciliatory and helpful approach which the noble Baroness, Lady Stedman, has made on behalf of the Government. I am moved to say a few words at this stage because of my delight, in the light of my understanding of the history of the Welsh people, to hear from the Conservative Benches such eloquent statements as follows: we heard from the noble Baroness, 375 Lady Elles (or was it indeed the noble Lord, Lord Elton?) of the desirability of safeguarding the rights of individual people of Wales. Again, they emphasised the desirability of doing natural justice to Welsh men and women. Then there was the fine phrase that the Welsh citizens must be protected from Executive and Government machinery.
§ Lord LLOYD of KILGERRAN
I am delighted that the noble Lord, Lord Elton, has emphasised that at last the Conservative Party is intending at last to emphasise those basic matters in the history of Wales. I have been very surprised that, in view of these general statements, there have been no Amendments by the Conservative Party to put the Welsh people, as members of the United Kingdom, in a similar position in which members of the United Kingdom in Scotland now find themselves under the Scotland Bill; that is, by putting forward Amendments to increase the legislative powers to Welsh people under this Wales Bill such as are to be found in the Scotland Bill. We on these Benches have from time to time expressed the view that more legislative powers should have been devolved in the Wales Bill. We believe there should be greater parity as between devolution to Wales and Scotland, but we have decided to go along with this Bill and we believe that the principal functions of the Welsh Assembly should be exercised as set out in Clause 9.
In my view, the speakers from the Conservative Benches have emphasised the difficulties which are likely to arise out of the powers given in Clause 9 to the Welsh Assembly. Of course there will be difficulties. Where a United Kingdom Constitution devolves powers to Wales, there are bound to be difficulties. The kind of difficulties that will arise in regard to the powers of the Welsh Assembly and the rest of the United Kingdom will be the those that sometimes exist now between city councils and the Central Government. When there is, for example, a Conservative Greater London Council and a Labour Government there are problems; and vice versa. In my view, 376 the difficulties arising under Clause 9 have been vastly exaggerated this afternoon.
§ Clause 9 agreed to.
§ Schedule 2 [Existing statutory functions]:
§ 5.32 p.m.
§ Lord SWANSEA moved Amendment No. 43F:
Page 36, line 32, column 2, insert—
("The functions under section 2(3).").
§ The noble Lord said: This Amendment deals with the reference in Schedule 2 to the Public Bodies (Admission to Meetings) Act 1960. Under Section 2(3) of that Act, any body may be added to the Schedule to the Act and any body so added may be removed from the Schedule by order of the appropriate Minister, made by Statutory Instrument, which is subject to the Affirmative Resolution Procedure in Parliament.
§ This Act, with other Acts to which reference is made in the Bill now before us, was framed before any national Assembly, either Scottish or Welsh, was ever thought of; and the Act makes no provision for national Assemblies. It refers to local authorities, and the highest tier of local authorities then was that of county council. Therefore, one question I should like to put to the noble Baroness opposite is whether these Acts which refer to local authorities can be taken as referring to an authority superior to a county council or whether some amendments will have to be made to other legislation to make them apply to a national Assembly. In any case, the powers to add to, or subtract from, the bodies to which this Act applies should remain in the hands of Ministers in Central Government and not be devolved to the Assembly, because Clause 9 refers in general terms to the exercise by the Assembly of certain functions of the Minister of the Crown.
§ However, not only the Secretary of State for Wales might be involved. It seems to me that too much power is being given here to the Assembly to take over functions normally exercised by Ministers of the Central Government. I think a safeguard must be kept against the Assembly or its committees going into closed session and excluding the 377 Press and the public. That safeguard should continue to be exercised from the central Government. I beg to move.
§ Baroness STEDMAN
The Public Bodies (Admission to Meetings) Act 1960 provides that the meetings of certain bodies and their committees in normal circumstances should be open to the public. The bodies concerned are listed in Schedule 1, and include local authorities, water authorities and health authorities. There are no ministerial powers in the Act to vary the procedures for open meetings or to vary the criteria under which bodies may resolve to exclude the public. In fact the only ministerial power in the Act is the one which the Amendment seeks to reserve. This is the power in Section 2(3) to add new bodies to the list in Schedule 1. There is no power to remove bodies, escept where they have themselves been added by order. There is therefore no power to disapply the Act to, for example, local authorities.
The Government believe that it is right for the power in Section 2(3) of the Act to be transferred to the Assembly. It is concerned with the general supervision of local authorities and similar bodies acting in devolved areas, and it fits in with all other general supervisory functions which are to be transferred. In practice it is a minor power because, where new public bodies are established by Statute, the Act concerned often itself applies the 1960 Act to those bodies, where appropriate, without leaving the matter to ministerial discretion. This was, for example, the case with the Local Government Act 1972.
We do not think that this Amendment is necessary. We think it is right that the Welsh Assembly themselves should be free to make their own arrangements for their proceedings, but I might remind the noble Lord that we have some Amendments coming later, including Amendment No. 69A, when we shall be discussing the proceedings of the Assembly. If he likes to think about what I have just said, we might perhaps have further discussions when we reach that Amendment.
§ Lord ELTON
I am sure we are all most grateful to my noble friend for putting down this probing Amendment and to the noble Baroness for saying what are in fact very important words. 378 It may be a simple case, but she will be aware that many people are anxious about the shape that the Assembly is going to take and about the danger that in some way it might operate in a—I do not think "clandestine" is the proper word—way which is outside the public gaze. This, I think, is the function of a Committee stage: expeditiously to remove fears; and for my part I am very grateful to the noble Baroness for doing so.
§ Lord SWANSEA
I am also grateful to the noble Baroness for what she has said. I do not think, though, she has quite answered one point I made about the actual standing of the Assembly under this Act, because it cannot really be classed as a local authority; it is superior to local authorities. I think this point arises in other parts of the Bill, and wonder whether she could clear up that particular point. Can the Assembly be classed as a local authority within the meaning of this Act and the other Acts, or is some further amendment necessary to bring it within the sphere of this Act and the other Acts?
§ Baroness STEDMAN
My Lords, we think it is appropriate that the Wales Bill should apply the Act of 1960 to the Welsh Assembly. It is a nationally-elected body and it should be free to make its own arrangements for its proceedings. As I said, we are coming to the question of proceedings later on and can no doubt hammer this out then in greater detail. Knowing something of the Welsh county councils, from my years of service on county councils—not in Wales, I hasten to say—I know that they believe in open government; they do things in the open, and there is no reason at all to suppose that they will want to carry out all their business behind closed doors.
§ Lord SWANSEA
I am grateful once more to the noble Baroness; but of course I was referring to the proceedings of the Welsh Assembly and not to local authorities. However, I will take note of what she has said.
§ Lord ELTON
If my noble friend is tempted to withdraw this, may I just say that I should be most interested if we could have an answer to that question, which the noble Baroness may have 379 thought she answered by implication, but which I do not think she did. Under various Acts of Parliament which we are now considering, is the Welsh Assembly a local authority or is it not?
§ Lord SWANSEA
The noble Baroness has at last provided the answer to my first question. In that case, I think that that gives weight to what I have been saying. The Welsh Assembly will not be a local authority, so how will it come within the ambit of the Public Bodies (Admission to Meetings) Act and other Acts relating to local authorities?
§ Baroness STEDMAN
We do not think that it is right to write into the Wales Bill that it should be bound by the 1960 Act. It will be a matter for the Assembly to decide. We are reasonably certain that that is the decision which it is likely to make.
§ Lord ELTON
So the noble Baroness is saying that it is up to the Welsh Assembly whether its debates are in public or in private. I think that that is something which we should like to think about.
§ Lord SWANSEA
I think that we have chased this hare for long enough. I shall study what the noble Baroness has said, and perhaps have another look at the later part of the Bill which she mentioned. Meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.41 p.m.
Lord SWANSEA moved Amendment No. 43G:
Page 36, leave out lines 34 and 35.
§ The noble Lord said: This part of Schedule 2 places the whole of the Local Government (Records) Act 1962 within the competence of the Assembly, as it applies to Wales. Nevertheless, Section 5 gives the Minister of Housing and Local Government power to make alterations to local Acts, in cases where provisions in those Acts are inconsistent with a provision of this Bill; and, presumably, in 380 the application of the Bill to Wales those powers will be exercised by the Secretary of State for Wales. I was not at first sure whether to put down an Amendment to exclude the functions of the Minister under Section 5 from the provisions of Schedule 2, so as to continue to reserve those powers to him. But I think, on the whole, that it is better to move to exclude the whole Act from the Schedule, in order to ensure uniformity of the application of the Act in England and Wales by Central Government. I beg to move.
§ Baroness STEDMAN
This is the second of a number of Amendments which we will be discussing related to the Assembly's responsibilities in the field of local government. It is concerned with the Local Government (Records) Act 1962, which is an Act dealing with the law relating to the functions of local authorities with respect to records, including provisions about their use, acquisition and deposit.
The ministerial powers in the act are very few. There is a power to specify by order of the authorities to which the acquisition and deposit provisions apply, and also a power of consent to the deposit of records with a person other than an authority specified in the order. The only other power which the Minister has is one to amend or repeal a local Act which does not conform with the provisions of the 1962 Act. This power is now more or less spent. These are powers of very limited extent, and, I suggest, are entirely appropriate for transfer to the Assembly. After devolution, the Assembly will exercise functions in respect of the very great majority of major local government responsibilities; for example, education and housing. And the Assembly will also exercise most functions which are of a more general supervisory nature; for example, in respect of local government finance and audit. Functions in respect of local government records clearly come within this second general category. Devolution of these functions is therefore consistent with this approach, and I am sure that the Assembly will be assiduous in carrying out its responsibilities. I hope that the noble Lord is satisfied with that explanation and will not press this Amendment.
§ Lord SWANSEA
I am grateful to the noble Baroness for those remarks, which have served to clarify the position so far as I am concerned. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Lord SWANSEA moved Amendment No. 43H:
Page 37, leave out lines 6 and 7.
§ The noble Lord said: The Local Authorities (Goods and Services) Act 1970 gives power to a local authority and a public body to enter into an agreement for the supply by the authority to the body of goods, professional and technical services, plant and apparatus and their operators, and maintenance work by the authority on land or buildings for which the public body is responsible. Here, again, we come up against a definition of what is and what is not a "local authority". "Local authority" in the context of this Act normally means a county or borough council, or the equivalent, which regularly carries out works of various natures. The Welsh Assembly is a new animal, above local authority and county council level. Is it envisaged that the Assembly should take unto itself any powers of a works or services nature at present exercised by county councils and, if so, to what extent? I feel that powers reserved to the Secretary of State under Section 1(5) should continue to be reserved. Otherwise, I do not quite see what will be the procedure for dealing with Statutory Instruments, as provided by Section 1(5), if the administration of the whole Act is handed over to the Assembly. I beg to move.
§ Baroness STEDMAN
The Local Authority (Goods and Services) Act 1970 enables agreements to be made between local authorities and public bodies for the supply by the former to the latter of all forms of goods or services. The intention is that local authorities should be able to put their facilities to wider use. For example, a local authority might agree to undertake maintenance work for a housing association which does not have the resources for it to be economical to carry out the work itself.
The only relevant ministerial powers in the Act are those of designating public bodies and of imposing restrictions on the 382 agreements reached. The power of designation is one which has already been widely used and a whole miscellany of bodies have been designated—ranging from new town development corporations to the Women's Royal Voluntary Service. The Government consider it right that the power should be transferred to the Assembly, which will have a number of similar supervisory responsibilities in local authority matters. Moreover, the great majority of the bodies so far designated operate in the "devolved" sphere. However, the Bill must take account of the fact that there are some bodies operating in reserved areas which the Government may wish to designate. The Government are accordingly given in Schedule 3 (lines 37–38 on page 62) a concurrent power to add bodies to the list. I suggest that this is a sensible and practical approach to the Local Authority (Goods and Services) Act, and that it provides fully for the interests both of the Government and of the Assembly.
§ Lord ELTON
That was very interesting. In what circumstances would the Government wish to designate a body to which a local authority might supply goods and services, when the Welsh Assembly itself did not wish to do so?
§ Baroness STEDMAN
That is a good question. It is difficult and is not practical to split the power to designate bodies between the Government and the Assembly, according to the nature of the bodies concerned. Many of them are not operating, or are not self-evidently operating, within either the devolved or the reserved spheres. Therefore, we want some kind of concurrent action on this. I should like to look at the point which the noble Lord has raised and write to him. I cannot give him an absolutely clear answer on this point.
§ Lord LLOYD of KILGERRAN
May I ask the noble Baroness whether she would send me a copy of some of the letters that she is proposing to send to the Front Bench of the Conservative Party. From time to time she has been most helpful in saying that she is going to commit herself in writing in some way or other. If she could send me copies, I should be most grateful.
§ Baroness STEDMAN
I shall be very happy to see that noble Lords on the Liberal Benches are kept apprised of what we are doing.
§ Lord SWANSEA
I am grateful to the noble Baroness for her explanation. I should like to return for a moment to Section 1(5) of the Act which provides for the Minister of Housing and Local Government and the Secretary of State acting jointly to designate public bodies for purposes of the Act made by Statutory Instrument. In the Bill before the Committee it is proposed to devolve the whole of this Act to the Welsh Assembly. Should not the powers under Section 1(5) be reserved to the Minister and the Secretary of State?
§ Baroness STEDMAN
Section 1(5) of the Act enables Ministers by order to prescribe bodies exercising functions of a public nature as being bodies for the purposes of the Act. There is a wide miscellany of bodies ranging from new town corporations to the Women's Royal Voluntary Service and the Red Cross, all of which can be sensibly described as being devolved or non-devolved. To avoid any unnecessary rigidity the power of description is made concurrent in Schedule 3. Normally, in practice, it will be exercised by the Assembly as most local government matters will fall within its competence, but the Secretary of State will also be able to prescribe bodies where he considers it appropriate.
§ Lord SWANSEA
I am grateful to the noble Baroness. I shall look carefully at what she has said and, in the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.54 p.m.
Lord SWANSEA moved Amendment No. 43J:
Page 37, column 1, line 9, leave out ("55").
§ The noble Lord said: We come to the references to the Local Government Act 1972, and this Amendment refers to Section 55 of that Act which deals with the operation of the Welsh Local Government Boundary Commission. Let me say at once that it is not my intention at this stage to pre-empt any discussion on 384 Clause 12 of the Bill and I shall endeavour to confine myself to one or two points. It seems curious to me that in this part of Schedule 1, the only reference is to Section 55 of the Act and not to the whole Part of the Bill dealing with the Local Government Boundary Commission for Wales—Sections 53 to 59 and Section 62. It is hard to see why Section 55 has been singled out to be devolved to the Assembly. Clause 9 of the Bill refers generally to the transfer of functions of Ministers to the Assembly, and it is not clear exactly what function of what Minister under Section 55 alone it is proposed to devolve. Perhaps the noble Baroness can clear away some of the fog which covers it. I beg to move.
§ Lord DAVIES of LEEK
I have followed with interest the remarks of the noble Lord. I have looked at this and marked it up. Am I right in thinking that without the consideration of the British Parliament the Assembly could once again re-draw Parliamentary boundaries for the Westminster Parliament in Wales? Is that power conferred upon them or is it not?
§ Baroness STEDMAN
The noble Lord opposite was not the only one mystified when he saw that it was just Section 55 which was taken out; so was I. Section 55 is the section which imposes on the Local Government Boundary Commission for Wales certain duties to keep under review the counties and districts in Wales to see whether changes in local government areas are desirable. The Assembly will have no responsibility for these matters and the listing of Section 55 in column 1 of Schedule 2 is not what it might at first seem. Schedule 2 is concerned with the transfer of Ministerial functions, and the only Ministerial function in Section 55 is in subsection (4) of the section; this imposes a duty on the Secretary of State, where he has made a designation order under the New Towns Act 1965 in respect of a new town, and the land involved is not wholly comprised in one district, to give notice of that fact to the Local Government Boundary Commission for Wales.
Part VIII of Schedule 2 to the Bill, to which we shall be coming later, proposes that the Welsh Assembly should be responsible for the exercise of functions 385 under the New Towns Act and it is therefore purely consequential that it should also inherit the obligation under Section 55. Once the notification has been given, any action becomes a matter for the Boundary Commission and ultimately the Secretary of State. Again, I would stress that all other matters in respect of the Boundary Commission are reserved.
§ Lord SWANSEA
I am grateful to the noble Baroness for that explanation. So far as I am concerned the situation has clarified somewhat and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.57 p.m.
§ Lord GRIDLEY moved Amendment No. 43K:
Page 37, line 22, at end insert—
("The power under section 129.").
§ The noble Lord said: I wonder whether the noble Baroness agrees that it would be for the convenience of the Committee that we should take Amendments Nos. 43K and 43L together because they both more or less hope to achieve the same object. In referring to the Amendment which I am proposing, may I say once again that I am concerned about the powers which are to be devolved to the Welsh Assembly which were hitherto held by the Secretary of State. In my Amendment I am referring to Section 129(1) of the Local Government Act 1972 wherein it is specifically stated that payment of purchase or compensation money by one local authority to another should, as I understand that section, in any dispute or in any disagreement of that nature be settled by one person, the Secretary of State. As is proposed in the Bill, it is those powers which are to be handed over to the Welsh Assembly. As we do not quite know at present how the Welsh Assembly will be constituted, it is my view that in disputes of that nature where it was considered desirable that a decision should be left in the hands of one person as an arbiter, it is undesirable that the whole of that function should be pushed over to the Welsh Assembly. Apart from that, I hope it will not be construed that I am saying that any act performed by the Welsh Assembly might be of a dishonourable nature, but I do not think the Welsh Assembly should be 386 placed in that difficult position. With that object in view, I am moving the Amendment that the present circumstances should pertain and that this power should be left with the Secretary of State and not devolved to the Welsh Assembly. I beg to move.
§ Lord SWANSEA
I should like briefly to support my noble friend in this Amendment, because Section 1(29) is quite specific about the powers of the Secretary of State in this connection and says in definite terms:A decision of the Secretary of State under this section shall be final".It seems to me to be quite certain that those powers should be reserved to him. Therefore, I support the Amendment.
§ Baroness STEDMAN
Section 129 of the Local Government Act 1972 concerns certain instances of land transactions between two local authorities—for instance, where there has been a dispute. It enables the Secretary of State to determine the arrangements in respect of compensation to replace the arrangements set down in the Compulsory Purchase Act 1965 whereby the compensation is paid into court. This is because different considerations apply where both parties to a land transaction are local authorities. Public money is involved so far as both the purchaser and the seller are concerned, and no question arises of compensation to private interests.
The financial arrangements of the Welsh local authorities are primarily a devolved matter, since not only will specific grants and authority for borrowing for the expenditure relating to the devolved services be a matter for the Assembly but it will also have the sole responsibility for the rate support grant in Wales and will take over those ministerial powers which relate to the general supervision of financial matters, including accounts and audit.
In the Government's view, the powers under Section 129 of the Local Government Act should, for consistency, also pass to the Assembly in relation to transactions between Welsh local authorities.
§ Lord GRIDLEY
I thank the noble Baroness for the way in which she has answered the points which I have made, 387 although I do not think that she has really answered them. I find it very difficult to be satisfied that this is the best arrangement for all circumstances. I have some experience of what is involved in land transactions, since I worked in an estate agent's office before I came to your Lordships' House. However, I am prepared to look carefully at what the noble Baroness has said. Therefore, at this stage I am prepared to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 43L not moved.]
§ 6.3 p.m.
Lord GRIDLEY moved Amendment No. 43M:
Page 37, column 2, line 24, leave out ("and 201") and insert ("201 and 208.").
§ The noble Lord said: I beg to move the Amendment which stands in my name. I have given notice to the noble Baroness that there is a mistake in the Amendment, as printed on the Marshalled List. It should read ("201 and 207") instead of ("201 and 208"). I apologise for giving such late notice to the noble Baroness. However, the mistake was drawn to my attention by telephone only 30 minutes before I was due to speak on the Amendment. Therefore I was unable to let the noble Baroness know about the mistake any earlier.
§ Turning to the proposals contained in Schedule 2 to the Bill, I wonder whether the Government have studied in detail the provisions of the Public Libraries and Museums Act 1964. It appears to me that the powers exercised by the Secretary of State are very limited and that in the past responsibility for the working of the Public Libraries and Museums Act has been left to a very great extent in the efficient hands of the local authorities. May I suggest to the Government that this responsibility should be left in their hands. What is the point of the Assembly taking over that responsibility?
§ The Bill proposes that the local authorities should lose to the Welsh Assembly the powers which hitherto they have exercised to look after public libraries and museums—powers which, to a very great extent, are of an administrative, not of a legal nature. Nothing is more 388 likely to cause friction between the Welsh Assembly and the local authorities than if they are to lose responsibilities in which they have taken pride—and with good reason.
§ Secondly, I can see no sense in handing over duties—which, as I have explained, are of an administrative nature—under the Public Libraries and Museums Act 1964 to an Assembly which, presumably, should concern itself with debates on policy matters and should in no circumstances become involved in administrative detail. In addition, so far as it is within our competence, we have a responsibility during the Committee stage of the Bill to ensure that what is proposed can be interpreted correctly by those who will have to carry out the provisions contained in it. Therefore, may I suggest to the Committee that the powers contained in Section 207 of the Local Government Act 1972 should be excluded from the Welsh Assembly and should remain, as at present, with the Secretary of State. I beg to move.
§ Lord LLOYD of KILGERRAN
In view of the correction which the noble Lord, Lord Gridley, has made, I wonder whether I may ask him a question about Section 207. I have been approaching the matter on the basis of the Marshalled List, which refers to Section 208. The noble Lord, Lord Gridley, has great experience of these matters and is most anxious that the scope for friction between the Welsh Assembly and the United Kingdom Government should, so far as possible, be diminished. However, I do not have before me a copy of Section 207 of the Local Government Act 1972. From what the noble Lord, Lord Gridley, has said, I am afraid that I do not appreciate what is the scope of Section 207.
§ Lord GRIDLEY
I believe that it is appropriate for me to reply to the noble Lord. I was telephoned by the County Councils Association, in whose name I am putting forward this Amendment. They pointed out that Section 208, which they had originally quoted, was wrong. I may say that when I considered speaking to Section 208 I found myself in some difficulty over making any sensible speech upon it. I expect that the noble Lord has studied the Public Museums and Libraries Act 1964, and I am sure that he appreciates 389 that this is very largely an administrative Act in which the Secretary of State reserves to himself the power to superintend the library services of this country. In those circumstances, those powers are all given to the local authorities. It seems to me to be an insult to the local authorities in Wales to take away from them and transfer to the Assembly those powers which they have managed so efficiently for so long. I am afraid that I am repeating myself, but that is the reason why I moved the Amendment.
§ Lord ELTON
I wonder whether I may put another thought into the head of the noble Baroness. I think I am right in saying that there may be some anxiety about the power to designate a library authority. If my recollection is correct, in this section of the Act the Minister has power to designate a library authority. Obviously that is a power which local authorities regard as somewhat important, though not so important as being designated as education authorities. However, I believe that it is a matter which causes concern.
§ Baroness STEDMAN
As we keep saying, the Government's policy is to devolve those ministerial powers and functions in relation to all kinds of things which are purely Welsh to the Welsh people. This includes their museums and art galleries, which we are devolving to the Assembly.
Libraries and museums provide a very important local service, and we feel that an elected Assembly will be best placed to meet the needs of the people in Wales in these matters. Moreover, they are integral to the devolved functions of education, the arts, crafts and all other cultural and recreative activities. The Public Museums and Libraries Act 1964 is listed as being wholly devolved in Part III of Schedule 2, and Clause 10 also confers a general power on the Assembly to support museums and libraries. By the means of this clause, the Assembly will be able to provide support, largely financial, to the National Museum of Wales, which is a Royal Charter body, to the Council of Museums in Wales, which is a non-statutory body, and to any other museums or libraries which it may, in the Assembly's view, be right to support.
390 I think that the noble Lord is unduly worried about this. The local authorities will still continue to run the libraries, museums and galleries as they have done up to now, and I am advised that there are no ministerial functions at all in Section 207 of the Local Government Act 1972. With regard to the comment made by the noble Lord, Lord Elton, I have hastily scanned the photostat copy that I have and I cannot find any reference to the power stating what shall be the library authority areas. I will certainly look into that before the next stage of the Bill.
§ Lord ELTON
I am grateful to the noble Baroness for that. She has raised another matter entirely which I think is of concern; that is, the funding of the grants in aid to be given to the National Museum of Wales. I am very interested to know whether the purchase grants which hitherto have come from central Government will now come from the Welsh Assembly and, if so, whether the national museum has been consulted about the effect this is likely to have upon its grants in aid for purchase. As I understand the position hitherto, the bids for grant have been passed to a national body and the recommendations of that body have been put, with the bids of the three parts of the United Kingdom, before the Secretary of State in question, and he has decided the allocation between those, in rivalry only with each other. The allocation has then been made in the light of that advice.
I hope I have got that right, but the noble Baroness will know if I have got it wrong. If indeed that was the procedure and they were hitherto in rivalry between each other as to the purchase of a Rembrandt or some other artefact, how are they reacting to the proposition that they should now be in rivalry with statutory bodies and municipalities for the building of roads, as it were, and for other purposes quite different from those of museums?
I suspect that the same question will raise itself in connection with funding the purchase grant of the National Library of Wales. I suspect that it is really a matter of considerable importance and interest to the people involved in these culturally vital activities in Wales that their 391 bids for funds should be thrown into a completely new and unfamiliar perspective. I should very much like to know whether they have been consulted and, if so, whether the comments they have made have been taken into account in drafting this Schedule.
§ Baroness STEDMAN
I regret to tell the noble Lord that owing to the speed with which all the Amendments came in I have not got as far as considering what happens with special purchase grants and how they would affect this matter. With the leave of the Committee, and if the noble Lord will agree, I will look into it and will write to him. It is an important point, and I should like to be quite correct on it and not hazard guesses at this stage.
§ The Marquess of LINLITHGOW
I should like to ask the noble Baroness a question on that because I am getting somewhat fogged. Is this an exactly parallel case to the point that arose on the galleries, museums and special purchasing grants on the Scotland Bill?
§ Lord ELTON
I think I should say that obviously we are apologetic for the lateness of tabling Amendments. On the other hand, I think the noble Baroness will realise that the labour of going through enactments with a toothcomb is considerable; and do not have a lot of time to do it, and we have forwarded photostat copies whenever possible. I realise that the noble Baroness is not being unduly critical of us, but I thought I should explain that we have done our best.
§ Baroness STEDMAN
I was not being critical. I appreciate the difficulties that the Opposition are in.
§ Lord PARRY
This question is obviously perfectly proper and has been exercising the minds of people on various bodies in Wales. It seems reasonable to suppose—and I have no status for saying this, other than the fact that we have been discussing it at various levels—that the Secretary of State, having requested the right to devolve functions and having been given that right (assuming that the 392 Act is passed), would then expect the Assembly itself to determine the disposition of the funds available to it from the Consolidated Fund and otherwise.
There is already a very great precedent of experience existing at local authority level and at nominated body level, where there is in any case competition. I take the point raised by the noble Lord, Lord Elton, that the whole thing is being thrown into a new situation. That is inevitable. It is understood that it is so, and bodies like the Welsh Arts Council will find themselves working with a new localised situation as opposed to accepting a portion of the grant and a portion of the services made available to them at present under the British Arts Council. So while the question is proper, with the greatest respect I do not think there will ever be a stage at which the Minister on the Front Bench can answer in detail, other than to say that it would seem that the Secretary of State would expect the Assembly to make its own decisions about brains or drains or whatever.
§ Lord ELTON
I like the alliteration, but I am not sure that it is appropriate. I do not think we can leave it entirely there, because we none of us actually know what we are talking about, I understand. I bear as much responsibility for that as anybody else, although it is a position with which I may be more familiar than the noble Baroness. However, the issue is an important one and the noble Lord, Lord Parry, has suggested a resolution of it which may be simplistic. I have asked three questions: first, what is the present system? Secondly, how does the proposed system differ from it and, thirdly, to what extent have the bodies involved been consulted and their views taken into account.
The noble Lord, Lord Parry, has raised another point which is the Welsh Arts Council, with which I believe he has a connection. Presumably, that also would have a view. If the noble Baroness could circulate her reply fairly generally, I think it would be a good thing, because I know that there is disquiet in areas which are not perhaps capable of being all that vocal, and we should not be doing our job properly if we were not able to look into this for them and reserve the right to something. It may not be 393 necessary, but on the other hand it may be necessary to bring something forward at the next stage of the Bill.
§ Lord LLOYD of KILGERRAN
I agree with the noble Lord, Lord Elton, that these are important and new matters, and I should like to ask to be put on the list of those to whom the noble Baroness will write.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)
Does the noble Lord wish to withdraw the Amendment?
§ Amendment, by leave, withdrawn.
§ 6.18 p.m.
Lord SWANSEA moved Amendment No. 43N:
Page 37, leave out line 29.
§ The noble Lord said: When I was going through these various references to the Local Government Act, I came up against this one which is a reference to section 244 of the Act. Whatever confusion I may have been in up to that point was as nothing to the fog which enveloped me after I had studied this clause. I cannot really see what it means at all, so if the noble Baroness can do some little thing to clear the fog which has surrounded it and me, I shall be very grateful to her. I beg to move.
§ Lord GRIDLEY
I should like to support my noble friend in what he has said: I was equally fogged and could not understand a word of it.
§ Baroness STEDMAN
I shall do my best to spread a little light. Section 244 of the Local Government Act 1972 has the effect of amending certain local or private Acts which were passed prior to 4th August, 1906. It provides that where, as regards local authorities, powers are conferred by such Acts upon the Treasury with respect to dealings with property, loans and connected matters, those powers should now be exercised by the Secretary of State. This simply reflects modern practice. The section also provides that, if any question arises as to whether any particular power is transferred to the 394 Secretary of State by this provision, the determination of the Treasury shall be final.
The Wales Bill does not itself transfer to the Assembly any ministerial power to be found in local Acts. If the Bill attempted this task I suggest that Schedule 2 would get quite out of hand as there are such a miscellany of local enactments, most of which do not contain ministerial powers of great significance. Instead, the task will be undertaken by the Secretary of State by order under Clause 13 of the Bill. The Government's intention is that the order should transfer to the Assembly those powers under local Acts which are analagous to the powers under public Acts transferred by Schedule 2 to the Bill.
As the Government will have to determine what ministerial powers should be transferred to the Assembly, it follows that the powers in Section 244 of the Local Government Act 1972 should be reserved. If they were, as the Amendment proposes, not excluded in column 2, I am advised that the legal effect would not be wholly clear. But it is possible that many powers in pre-1906 local Acts would be transferred to the Assembly regardless of their subject matter and without the Secretary of State being able to consider under Clause 13 whether they were suitable for devolution. This would not only be undesirable in itself but would place pre-1906 local Acts in a different position to later Acts. It seems right that if any question arises as to whether a Treasury power has been transferred as a result of Section 244, the Treasury should continue to determine the issue, and not the Assembly. I hope that makes it a little clearer.
§ Lord SWANSEA
The noble Baroness's skill at shedding light is unexcelled. I am very grateful to her for that explanation. I should perhaps in kindness to her have said at the outset that this was only a probing Amendment anyway, and I would have saved her some of that lengthy explanation. I am very grateful to her, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.22 p.m.
Lord WIGG moved Amendment No. 44:
Page 39, leave out lines 16 to 18.
§ The noble Lord said: I beg to move Amendment No. 44 standing in my name, and, with the permission of the Committee and for your Lordships' convenience, I would wish in one speech to address my remarks to Amendments Nos. 44, 45 and 46, because they all operate, as it were, under the same umbrella.
§ As with the Scotland Bill, the story starts with the publication by the Government of Cmnd. 6348, Our Changing Democracy. Immediately following publication of that paper, the Home Office, in a circular dated 27th November 1975, wrote to a number of bodies and issued an invitation for their views. They wrote to the Gaming Board for Great Britain, the Horserace Betting Levy Board, the Horserace Totalisator Board, the Bookmakers' Committee and the Jockey Club. The first four are all statutory bodies; their membership is appointed by the Secretary of State for the Home Department. They all discharge responsibilities which, in the case of the Gaming Board, the Horserace Betting Levy Board and the Horserace Totalisator Board, find expression in reports which are submitted to the Secretary of State and tabled in either House. The work of these bodies has been built up now over a period of not less than 17 or 18 years. They were brought into being by a Conservative Administration. Their work has been supervised by successive Labour Governments. Indeed it is true to say that they enjoy general confidence.
§ What they have to say and the views they express, I should have thought, are worthy of your Lordships' attention. Indeed, on the Scotland Bill your Lordships agreed with me, and the Amendment that I put down to retain the work of these bodies right across the board throughout the country as a whole was carried. Each one of them has been built up very slowly; the foundations have been dug and no one has attempted to put the roof on before the foundations were dug. Step by step, brick by brick, they have been built up until they are working. I would say that any fair-minded, dispassionate observer would say that they function as well as any similar organisations in any part of the world. Indeed I would say that one of the merits—it is a virtue for which both Parties can claim 396 credit—is that they operate in the British way.
§ A fundamental decision was taken way back in the early 1960s that there would be no suppression. We would abandon suppression; we would get away from the operation of betting and gaming outside legality, which carries with it the dangers of the Mafia, the dangers of protection rackets, and all the corruption and nastiness of street corner betting and illegal gaming. It has paid a handsome dividend. Today, the Mafia does not exist in this country; protection rackets do not exist, at least on any great scale. I think betting and gaming, from the highest level, in terms of stake, down to the humble bingo —which I used to play as a soldier, but it was known as "housey-housey"—now operates cleanly and in a way which is supervised by public bodies answerable to this House.
§ I am anxious to establish under the Wales Bill that the concept in relation to what is being devolved here is the concept of executive competence. If your Lordships would turn to page 39 of the Bill, we see mentioned The Betting, Gaming and Lotteries Act, and the functions which are excluded are those under Sections 12, 24, 25(1), 26, 29(2)(a), 29(3) and 31. I can tell your Lordships without any great difficulty—one does not have to be a very careful researcher—what are the parts that are excluded. Section 12 deals with the establishment of the Tote Board; Section 24 deals with the establishment of the Levy Board; Section 25(1) deals with the Levy Board's powers; Section 26 deals with the establishment of the Bookmakers' Committee; Section 29(2)(a) deals with the levy appeal tribunals, appointment of chairmen; Section 29(3) deals with the procedure of the tribunals; Section 31 deals with the Levy Board and Tote Board annual reports and accounts. Those are the parts that are excluded. So all the rest remains.
§ May I remind your Lordships that Section 24 is excluded, and Section 24 is a very important section. It is of particular interest to the Jockey Club, one of the voluntary bodies to be written to. Section 24(1)(a) to (c) deals with the three functions upon which the levy may lawfully be spent;—that is, improvement of breeds, advancement of veterinary science or education, improvement of horse racing. So here we have the powers 397 retained to the Secretary of State under Section 24. But, of course, if the rest of this Act, the consolidated measure of 1963, is devolved, then it opens into question the operation of the Jockey Club writ right across the board, because it will affect the Totalisator Board and the Levy Board. If the Amendment had not been passed on the Scotland Bill, and if this Amendment were rejected, then you could have three Levy Boards and three Totalisator Boards; the poor Jockey Club would have to operate in association with three, and it may be that they find it difficult enough having to operate with one of each of them. So I think one can start off by expressing the Jockey Club point of view.
§ I do not speak for the Jockey Club and they do not speak for me, but I have been approached by all the organisations who have either relied upon their published evidence or have been approached directly. All the statutory boards are aghast at the provisions of this Bill and the Scotland Bill, and they support me in the Amendments I have put down. I am going to weary your Lordships again by reading, as evidence of good faith, just one paragraph from a circular sent out by the Jockey Club. After all, I am not coming here to plead with your Lordships; it is a matter for noble Lords to make up their own minds about. May I remind your Lordships, as I did on the Scotland Bill, that you are dealing with no light measure.
It may be just the hour before dinner, but may I remind your Lordships that the turnover on betting and gaming in these islands—and I am not relying on my figures; your Lordships can go to the Printed Paper Office and get the annual report of the Board of Customs and Excise and verify it for yourselves—is not less than £3,250 million per year. One might say that it affects almost every home in the country in some form or other. These are the facts, and if it is mishandled it will be a corrupting force. It is of major public interest and it should be dealt with honestly and competently. Therefore, in this respect the views of the Jockey Club are not unimportant, and I propose to read to your Lordships a paragraph from the circular. I should like to point out to your Lordships that I did not ask for this circular, it was sent to me. It says:
In view of the fact that the betting market knows no frontiers, the Jockey Club are concerned at the considerable dangers which might arise if betting legislation is not uniform throughout Great Britain. Unless the levy, upon which racing depends so heavily, is applied uniformly throughout Great Britain an inequitable and difficult situation will occur which will be to the detriment of British racing as a whole".
§ So far as Wales is concerned, racing is a very inconsiderable activity. On the face of it, it looks as though the Welsh people are not interested in going to racing. There are only two racecourses in Wales. One is at Bangor where I think that there are seven days of jumping in the course of a year. At Chepstow there are 12 days jumping with eight days fiat, including one mixed meeting. The class of racing there is not high but it gives great enjoyment to those who attend. Apart from the Welsh Grand National the races that are held are not important to the racing scene as a whole. Moreover, there are few training establishments in Wales, and therefore very few horses that are trained in Wales. Indeed, were it not for England, English horses, English trainers and English jockeys, racing at Chepstow and Bangor would be very poorly supported.
§ So far as the Jockey Club is concerned, it must be interested in the breaking up of the concept of its authority into three parts, one of which, as a result of the Scotland Bill, has happily been avoided, but the others are at issue tonight. When one tries to turn, as I have done, from what the Act excludes and tries to reach some conclusion as to what is left—that is to say, what is in fact devolved as an executive function—one does not know whether one is on one's head or one's heels. I would not in any sense call myself an expert, but I have had some experience of the operation of these Acts as a member of the old Racecourse Betting Control Board, as a member of the Horserace Totalisator Board and as chairman for five years of the Levy Board.
§ One point in dispute at one stage and which caused an amending Act to be passed concerned the powers of the three members. The three individual members appointed by the Government were an attempt by Lord Butler to keep the controversial problems about the size of the levy and how it should be made up right away from the Home Office; that 399 is to say, the Bookmakers' Committee—and that, of course, caused a difficulty to the noble Baroness, Lady Stedman—is asked by the Levy Board to prepare its proposals for the levy for the ensuing year. It puts its proposals forward to the Levy Board and if the Board accepts them forthwith the agreement has the force of law. Under the Act as originally drafted the power passed, when I was chairman, to myself, and to two independent members, and it had the force of law.
§ Mr. Callaghan, the then Home Secretary, reversed, I think unwisely, the principle of Lord Butler, saying that no individual should have this power and that it should be vested in Ministers. Of course, there is an argument for saying that it should be left to individuals but it has the consequence of annually bringing a great difficulty right into the Home Office. One doubts whether there was in the Home Office the experience and knowledge which Lord Butler took into account when handling the levy. So, the 1969 Act was passed, became a statute and became operative. I assume that the 1969 Act is not mentioned in Schedule 2 because by its being passed, the parts that it mentions in the 1963 Act become part of the 1963 Act so that the contents of the 1969 Act are relevant. However, one of the matters which is left over and which is devolved is the power of determination.
§ Let us assume that there is a dispute—and disputes occur with some regularity—between the Levy Board and the Tote. If there is a difference it used to fall to the three independent members to decide it. Now it is left to the Secretary of State. However, this is a devolved power. Therefore, the Assembly in Wales has no organisation to guide it and no build-up of experience because Section 27(5) was repealed by the Horse Racing Betting Levy Act 1969 and the situation is now left up in the air. What is true of what could be a matter of dispute as between the Totalisator and the Levy Board is that the same provision has also been devolved in relation to a dispute—there was one last year and it seems very likely that there will be one this year—between the Bookmakers' Committee and the Levy Board. Under the provisions of this Bill— 400 because that section of the Act is not excluded—that too could be a subject for decision by the new Assembly. It looks to me as though it will have a very busy time indeed.
§ There are parts of the devolution process which frankly I do not understand. Under section 24, which laid down the three powers of the Levy Board, the exercise of those powers in terms of schemes and activities is vested in the Secretary of State in Section 25(1); that is to say, it can only do those things lawfully with the approval of the Secretary of State. The Home Office has a very bad form record in this area. From 1961 until I became chairman in 1967, no attempt whatever was made to seek the approval of the Secretary of State. I had three years hard work ending up with an instrument which was not executed and signed by the present Prime Minister when he was Home Secretary until May 1970. Until his approval was granted, the actions that were taken by the Levy Board in terms of Section 24 were ultra vires and the Home Office did not raise a finger. In other words—I do not make a black mark about it—they just did not know; they did not understand. They do not have the experience. Perhaps they are better men for not having the experience. However, I make the point that they did not have the experience to detect when something was very seriously wrong, except in one respect.
§ The three actors involved are all known Members of your Lordships' House. The noble Lord, Lord Soames, was Minister for Agriculture. He found that the National Stud was becoming a charge upon his votes and he came to me because I was, at that time, a member of the Racecourse Betting Control Board. I had conversations with the noble Lord, Lord Peart, who was at that time the Shadow Minister for Agriculture. As a result, the National Stud's policy was changed for holding mares and the stud in Dorset was sold and established in Newmarket with a completely new policy. That was submitted to the Secretary of State. He approved it and the results were present in this year's Derby. It was won by a horse the sire of which stands at the National Stud. Indeed, one of the things of which I am most proud during my five years in that office is that I also bought Blakeney on behalf of the country 401 for £400,000 and today he would be worth several millions.
§ So the record is not bad. Indeed, the Act is not bad when those who administer it understand what they are doing. I am not suggesting for one moment that this is my exclusive property, but I am saying that the work of the Levy Board and of the Totalisator Board has been of substantial interest to the country and they should not be torn up in pursuit of a political chimera the results of which are quite obscure. Do not give me the answer that I have consistently had from the Liberal Benches. They say: "Why worry? Why not trust the people? ". That is why I intervened when the noble Lord, Lord Parry, spoke tonight. Of course, I am prepared to trust the Welsh people. But they are much better men; they are not interested in racing. If they are not interested, leave it to those who are, and do not interfere. That is the very simple point.
§ I want to curtail what I have to say. Therefore, I move on to deal with the Gaming Board. I want to emphasise that the Gaming Board has a very special claim upon your Lordships' attention and acceptance of the evidence that I shall put before you. The Gaming Board had as its chairman a distinguished member of the Labour Party, Sir Stanley Raymond. He was appointed by a Conservative Administration and was subsequently reappointed on a number of occasions by a Labour Administration. He succeeded me as Chairman of the Horserace Betting Levy Board. In turn, he was succeeded by a very distinguished civil servant, the Permanent Secretary at the Home Office—and there has never been a better one—whose judgment on all subjects, particularly in connection with this subject, could not be sounder.
§ Those three men have come forward, two in annual reports presented to your Lordships in 1975 and 1976 and also in the published evidence which has been given to the Royal Commission. The present Administration set up a Royal Commission to inquire into all these activities and its report is due next month. One of the pleas that was made by the Gaming Board was: "Please do not do anything, do not upset these statutory Boards which work, until you receive the report of the Royal Commission".402
§ If any Member of your Lordships' Committee is in a fanciful mood for a bet and has any doubts about what I have been saying—I am certainly not making this offer with my card marked—if that Member cares to have a little wager with me (at evens, it you like), I am prepared to lay a shade of odds that the views which I express are in line with the evidence given by the Gaming Board that when the report of the Royal Commission is published next month what we say will have its backing and not the Government's policy. That is my confirmed view.
§ Briefly, I want to turn to some of the consequences in relation to the Gaming Board. The powers of the Gaming Board that are excluded are contained in Section 10 of the Act, which deals with the establishment of the Gaming Board and its functions. The Bill also excludes Section 43 dealing with the appointment of inspectors and their powers. Section 50 concerns the annual report of the Board and its submission to the Secretary of State. Apart from those three powers, the rest of the Act is devolved.
§ I should like to mention one or two examples. Let us take bingo, which is a not unpopular occupation with many of our fellow countrymen. Section 20 governs the way in which bingo shall operate, its supervision and the deductions which should be made. This will be devolved on to the new Assembly. Likewise with gaming—the games that can be played, the deductions that shall be made and the inspectorate are all devolved subjects. The very grave risk will be taken of transferring these from the Gaming Board to the new Assembly in Wales.
§ Quite apart from the parts of the Act that have now been devolved, the Act itself comprises section after section which enable the Secretary of State to make regulations and orders, all of which are to be passed over to the Assembly. I have mentioned some of the important ones. Section 15 provides for a levy to be charged on stakes and winnings; Section 22 makes provision for a whole range of regulations to be made, covering areas in which gaming clubs can be licensed, the grounds on which licensing authorities may renew licences and in some instances may refuse licences.
§ In its evidence, the Gaming Board pleads with the Government; it points 403 out that those who engage in gaming have vast resources; that it would be dangerous indeed to break up the administration of the Gaming Board. If that happened, the forces which are at work on an international scale might come in and find their way clear to breaking up not only the concept on which the Gaming Board is based, but also the very way in which it has been controlled from the time it came into existence.
§ I have endeavoured to be as brief as I can, but this is a very extensive and complex business covering the work of three statutory boards and the Bookmakers' Committee. Without exception, they are all in opposition to the Government's proposals and all indicate the dangers involved in action of that kind. Therefore, I have no hesitation in asking your Lordships to support me, if necessary, in the Division Lobby in support of the same principles as I advocated when this matter arose on the Scotland Bill. It is difficult to cut short a complex business of this kind and present it in a form in which I do not want to appear as a protagonist or a propagandist pleading for a cause, but rather making available to your Lordships a fairly long experience and researches which any Member of your Lordships Committee could follow if he or she is so minded. If such a Member is objective in his or her researches, I have no doubt whatever that he will reach the same conclusion as I have.
§ 6.48 p.m.
§ The Earl of ONSLOW
Unlike the noble Lord, Lord Wigg, I have no experience of betting; in fact, I tried to put a bet on my cousin's horse in the Derby, but did not know how to do so and it won, which was slightly galling. However, the noble Lord, Lord Wigg, has spoken with enormous knowledge and experience. I have joined with him on this Amendment because in the discussions during the Committee and Report stages of the Scotland Bill his argument seemed to be so overwhelming that it might need support from a member of another Party who is not involved—and I do not say this, obviously, in any pejorative sense—in the betting or horseracing industry. I know one end of a horse from another; I happen to like sitting in 404 the middle. I do not like going to racecourses; I very rarely go and I do not bet.
I should think that having seen similar powers deleted from the Scotland Bill, the Government will accept this Amendment without forcing us to go to a Division. If they do accept it, it will be intensely to their credit, because they will then have said: "We have seen the arguments from Members on all sides of the Committee; we concede that they are quite intelligent men, they are honourable men, and that they have a point, because your Lordships' House has taken this view". If the Government say, No, one can only be persuaded of the fact that they have not been listening to the argument. I know that Governments sometimes have to have arguments shouted in their ear, but on this occasion I should have thought that the argument is overwhelming.
There are, as the devolution Bills stand at the moment, 60 racecourses in this country. Five of them are in Scotland, two in Wales and the rest in England. We shall have a Totalisator Board and a Levy Board for "59-ish" of those racecourses, and if this Amendment is not carried there will then be the possibility of setting up a separate Tote, a separate Levy Board, for two racecourses. This seems to be beyond the bounds of sense.
In the previous debate on the Scotland Bill, the noble Viscount, Lord Thurso, waxed lyrical about Scottish racing. I should have thought that that was a fairly hard task. It brought to my mind kilted Highlanders on shaggy ponies after Culloden. But is anybody going to wax lyrical on Welsh racing? It is a United Kingdom industry; it is a United Kingdom sport; people bet across Borders. They bet across the Tweed, and across the Border between Wales and England. In my humble opinion it would be too ridiculous to allow betting and gaming to be devolved to Wales only: in other words, to two racecourse plus obviously some point-to-point courses, and not keep that within the United Kingdom as a whole. Therefore, I strongly support the Amendment in the name of the noble Lord, Lord Wigg.
§ The Marquess of LINLITHGOW
I should like to add just a few words. We have been through this on the Scotland Bill, and I was enormously impressed by the arguments I heard, and particularly 405 because the arguments came from people who knew what they were talking about. I support this Amendment. I would not have risen to my feet had it not been to congratulate the noble Lord, Lord Wigg, on having galloped round a Scottish course and then round a Welsh course and showed tremendous stamina, which I am afraid rather put my own stamina into doubt. However, I concentrated on what he said, and I believe in what he said, but I wanted to cheer him up a bit more by telling him that he was perfectly right that Mill Reef won the Derby. And I am sure he also realises that this horse that he managed to help to acquire for the National Stud performed the astonishing feat of siring the winner of the French Derby. I support the Amendment.
§ 6.53 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
I hope to speak with a moderate degree of brevity with regard to this Amendment because we have gone over this particular course before in the recent past. I would say to the noble Earl, Lord Onslow, that the fact that I suggest that the Committee should not accept this Amendment does not in any way suggest that Members of the Committee are not intelligent and honourable men, which I think was the rather strange suggestion he made in his speech. With great respect, he has got his Amendment, which he has signed, totally wrong. There is no question of a separate Levy Board, or Tote, for Wales as he suggested.
If he looks at his Amendment, he will realise that that is not the effect of it. I shall now explain to the Committee what is in fact the point of the Amendment moved by the noble Lord, Lord Wigg, and supported by the noble Earl, Lord Onslow. As the Committee knows, the Bill, by way of Clause 9 and Schedule 2, transfers existing ministerial functions to the Welsh Assembly. Clause 9 and Schedule 2 do not, and cannot, transfer to the Assembly powers which are vested in bodies. I make this point so that there is no doubt in anyone's mind that there is any possibility of the Assembly assuming, for example, the duty of the Horserace Betting Levy Board under Section 24(1) of the Betting, Gaming and Lotteries Act 1963, to assess and collect monetarycontributions from bookmakers and the Totalisator 406 Board. The entry for the 1963 Act in Schedule 2 only transfers to the Assembly ministerial powers: a clear distinction.
Perhaps I should start by reminding the Committee once again that the Assembly will have no legislative competence and therefore it will be operating within the framework of the existing law. For example, it will not be able to abolish the need for a licence for gaming under Part II of the Gaming Act 1968; but it will be able to make separate regulations as regards Wales about a levy which may be charged in respect of gaming taking place on licensed premises, which is dealt with under Section 15(2) of the 1968 Act. In the Government's view betting and gaming is primarily a matter of social or recreational activity for which it is wholly appropriate for an elected Assembly in Wales to have responsibilities. The bodies operating in the field which have a centralised, regulatory rôle, will continue to operate on an England and Wales basis.
There is no question of us moving away from that at all, notwithstanding what the noble Earl said a few moments ago. With respect, I think he has misunderstood the position. There will not, for example, he a separate Gaming Board for Wales, but within this framework the Government think it right that the Assembly should be able to take account of the views of the Welsh people and specific problems of concern in Wales, and should therefore be able to exercise ministerial powers in respect of these functions.
I now come to the position of the public hodies operating in this field. The Horseracing Betting Levy Board, the Horserace Totalisator Board and the Gaming Board will continue to operate as they do at the moment on an England and Wales basis. But these bodies are listed in Schedule 7 to the Bill and can therefore be subject to a Clause 59 order, so that changes may be made to take account of the Assembly's responsibilties. For example, additional Welsh members can be appointed to the Board by the Assembly. Clause 59(3)(a) allows for the Assembly to exercise existing ministerial functions in relation to the body. The extent to which existing ministerial functions would be transferred will depend upon the outcome of the Minister's consultations with the body concerned (Clause 59(4)) and the form of the order 407 placed before Parliament by the Minister. Until such action is taken, it is clearly important that ministerial powers in relation to the body are excluded from the competence of the Assembly, otherwise it would not be possible to achieve an orderly division of responsibility. This is achieved by listing the powers in column 2 of Schedule 2—hence the exclusions in column 2 in relation to the Betting, Gaming and Lotteries Act 1963 and the Gaming Act 1968.
I do not wish to take up still more time explaining the workings of Clause 59, which is obviously an important matter in relation to this particular question. We shall clearly have an opportunity of discussing that in due course. But I hope that this explanation makes it clear why these exclusions in column 2 for the 1963 and 1968 Acts are there; and, more importantly, what the position of the public bodies could be post-devolution. I repeat—and I think I have made the position clear on several occasions—there is no question of a separate Tote, separate Levy Board, so far as Wales is concerned. There are some powers for the Assembly after a Section 59 order has been passed, and they are limited powers so far as the Assembly is concerned. It is no more than that.
§ Lord WIGG
There is no doubt that what the Minister said is correct—that is, until a Clause 59 order is made—but I have given an account of what is in the Bill; the powers that are excluded and the powers that are not excluded, and I have commented exclusively on ministerial powers which exist now. If the Committee does not accept my Amendment, they will remain and then, when the Bill becomes law and the Assembly is set up and an order under Clause 59 is made, the things I described could happen. I assume that is why they are in the Bill.
The Minister says there is nothing in the Bill that will lead to a separate Tote or Levy Board, but let us briefly examine that. When they have the Assembly, the Welsh people, like the Scottish people in the same position, will look at the Levy Board in the same way as it has been looked at in England—as a mulch cow. They will not keep it as a pet but because it will produce some milk—some money—and that could be a matter of 408 dispute as between the Tote and as between the Levy Board. When that happens, the power which exists and which Parliament has vested in the Secretary of State as the arbiter, the honest judge in the public interest, will not be there any more; it will be in the Assembly in Wales who, as I say, will keep this cow not as a pet but in order to get some milk.
Let me make this simple point again, and I must not charge the Minister with being innocent because he would think that rude of me and I do not want to be rude to him, not for the moment anyway, not even accidentally. What does the Minister think will happen if there is a higher rate of levy in one country than in another? Of course, noble Lords on the Liberal Benches are innocent. I was interrupted on an earlier occasion by one of the Liberal spokesmen who said, in effect, "It is perfectly easy. You can have a lien on the levy; that can be done quite easily in Scotland". The poor dear never quite understood that people can bet in cash in a street in Glasgow and a lien can be put on that, but if somebody puts on a bet by telephone to a bookmaker in England, it is impossible to collect anything. The fact that one could have two different rates must mean in the long term—and the poor old Totalisator's overheads are costly enough already—that this is a piece of administrative nonsense from the point of view both of the Levy Board and the Tote.
I have saved my blockbuster to the last. The Minister said, in effect, "Just go away. This is going to be quite all right and it does not mean very much. Go home and have your supper and forget all about it". Perhaps I may trouble the Committee by reading Clause 10 of the Bill. I hope those who have had experience, particularly ministerial experience, in the other place will note this carefully and will tell me whether they know of any other Statute passed by any Administration since the dawn of time containing wider powers than Clause 10. If this is not a blank cheque, what is it?—Cultural and recreative activities.The Assembly may do anything it considers appropriate to support museums, art galleries, libraries, the Welsh language, the arts, crafts, sport and other cultural and recreative activities".To some people, bingo may be a vice, but it is a recreative activity, and this Assembly will be able to do "anything it 409 considers appropriate". So far as racing is concerned, it can do anything it thinks appropriate, yet the Minister says, "Please go away, forget all about it, it is all very innocent; just support the Government". It may be innocence because I can only think that it has been produced by innocents, but blank cheques given to innocents may be filled in by those who are not so innocent. I beg noble Lords to consider the possibility of not giving blank cheques drawn on somebody else's account and to support me in the Lobby tonight.
§ Lord HARRIS of GREENWICH
The noble Lord, Lord Wigg, having discharged his blockbuster, will forgive me if I deal briefly with that point, which could arise on the Question, That Clause 10 stand part or on an Amendment to it. It does not in any way change the description that I gave of the effect of this particular provision in the Bill. There are two other points I would make to the noble Lord. I would never accuse him of being innocent, nor would I regard it as offensive if he described me in those terms either.
I wish to comment on two other points he raised, the first of which raised some doubts in my mind as to the logical basis of his case. As I understood from the interesting review he gave of the affairs of the racing industry in the last few years, he gave a fairly low mark to the Home Office; he said they had mucked things up over a long period of time, during the lives of different Governments, and that there had been serious mishandling. Curiously, however, Lord Wigg is desperately anxious that the powers in the Bill should be left wholly and exclusively in the hands of the Home Office. I regard that as a tribute to my Department, though, with respect to the noble Lord, it seemed a strange argument given the general thrust of his remarks.
Secondly—he will appreciate that I
§ say this in an extremely amiable way—Lord Wigg referred to the effect of the Mafia and said that as a result of the activities of all the boards he listed we had been very successful in this matter. There was indeed a risk some years ago. We had some slight problem in this area, as he will well know, but it has been, I think, dealt with resolutely both by the organisations he mentioned and the police. I am bound to say that I think we have been successful at keeping the Mafia at bay, but I do not believe that if we let the Bill stand as it is, the Mafia will necessarily reappear in either Bangor or Chepstow.
§ The Earl of ONSLOW
I must take up what the Minister said about Clause 10 because if anything can be done in regard to sport, then surely he cannot glibly discard what the noble Lord, Lord Wigg, said and claim that we can discuss it simply when we reach the debate on the Question, That Clause 10 stand part. The noble Lord, Lord Harris of Greenwich, did not deal at all with the question of the possibility of the differential levy which he admitted could be levied on the various bets at the various places. He did not answer the point about the Scotsman credit betting at Ladbroke's on a Welsh horse. What are the different circumstances of racing in Newmarket or Chepstow which are likely to make the Welsh Assembly take a decision different from that of the Minister?
§ Baroness WHITE
I wonder whether my noble friend, Lord Harris of Greenwich, is aware that if it were in Wales it would be the "Taffia" rather than the Mafia!
§ 7.10 p.m.
§ On Question, Whether the said Amendment (No. 44) shall be agreed to?
§ Their Lordships divided: Contents, 76; Not-Contents, 61.411
|Alexander of Tunis, E.||Clifford of Chudleigh, L.||Denham, L.|
|Amherst of Hackney, L.||Clitheroe, L.||Deramore, L.|
|Baker, L.||Colville of Culross, V.||Drumalbyn, L.|
|Belstead, L.||Colwyn, L.||Elles, B.|
|Brooke of Cumnor, L.||Cork and Orrery, E.||Elliot of Harwood, B.|
|Brooke of Ystradfellte, B.||Craigavon, V.||Elton, L.|
|Brougham and Vaux, L.||Crathorne, L.||Faithfull, B.|
|Campbell of Croy, L.||Crawshaw, L.||Falkland, V.|
|Carrington, L.||Cromartie, E.||Ferrier, L.|
|Chelwood, L.||Cullen of Ashbourne, L.||Fortescue, E.|
|Fraser of Kilmorack, L.||Masham of Ilton, B.||Skelmersdale, L.|
|Greenway, L.||Massereene and Ferrard, V.||Soames, L.|
|Gridley, L.||Monson, L.||Stanley of Alderley, B.|
|Hanworth, V.||Montgomery of Alamein, V.||Strathclyde, L.|
|Henley, L.||Moyne, L.||Swansea, L.|
|Hill of Luton, L.||Napier and Ettrick, L.||Swinton, E.|
|Hylton-Foster, B.||Newall, L.||Tenby, V.|
|Killearn, L.||Northchurch, B.||Terrington, L.|
|Kilmany, L.||O'Hagan, L.||Trenchard, V.|
|Kinloss, Ly.||Onslow, E. [Teller.]||Trevethin and Oaksey, L.|
|Linlithgow, M.||Rankeillour, L.||Tweedsmuir, L.|
|Long, V.||Rochdale, V.||Vickers, B.|
|Lyell, L.||Romney, E.||Vivian, L.|
|Mansfield, E.||Sandys, L.||Ward of North Tyneside, B.|
|Margadale, L.||Selkirk, E.||Wigg, L. [Teller.]|
|Alport, L,||Hale, L.||Parry, L.|
|Aylestone, L.||Hampton, L.||Ritchie-Calder, L.|
|Balogh, L.||Harris of Greenwich, L.||Rochester, L.|
|Banks, L.||Hatch of Lusby, L.||Sainsbury, L.|
|Birk, B.||Henderson, L.||Seear, B.|
|Blyton, L.||Hughes, L.||Stamp, L.|
|Brockway, L.||Jacques, L.||Stedman, B.|
|Champion, L.||Janner, L.||Stewart of Alvechurch, B.|
|Collison, L.||Kaldor, L.||Stone, L.|
|Crook, L.||Kirkhill, L.||Strabolgi, L. [Teller.]|
|David, B.||Lee of Newton, L.||Taylor of Blackburn, L.|
|Davies of Leek, L.||Llewelyn-Davies of Hastoe, B.||Taylor of Gryfe, L.|
|Davies of Penrhys, L.||Lloyd of Hampstead, L.||Thomson of Monifieth, L.|
|Diamond, L.||Lloyd of Kilgerran, L.||Wade, L.|
|Donaldson of Kingsbridge, L.||McCarthy, L.||Wallace of Coslany, L.|
|Elwyn-Jones, L. (L. Chancellor.)||McCluskey, L.||Wells-Pestell, L.|
|Evans of Claughton, L.||Maybray-King, L.||Whaddon, L.|
|Gaitskell, B.||Melchett, L.||Wigoder, L.|
|Gardiner, L.||Northfield, L.||Winterbottom, L. [Teller.]|
|Glenamara, L.||Nugent of Guildford, L.|
|Gordon-Walker, L.||Oram, L.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 7.16 p.m.
Lord WIGG moved Amendment No. 45:
Page 39, leave out lines 23 and 24.
Lord WIGG moved Amendment No. 46:
Page 39, leave out lines 27 to 30.
§ House resumed.