WALES BILL

HL Deb 21 June 1978 vol 393 cc1212-369

House again in Committee.

Clause 16 [Pecuniary interests]:

Lord CULLEN of ASHBOURNE moved Amendment No. 61DA: Page 7, line 20, after ("pecuniary") insert ("or other").

The noble Lord said: As I have not spoken for quite a long time and I have heard the Government frequently suggest that we have some distrust of the Welsh Assembly, I want to say now that I have no distrust of the Welsh Assembly, which is in any case non-existent, and which may in fact never exist. I do not think that pecuniary interests are necessarily more important than other interests. I think that there are occasions when the reverse is true. All that this Amendment seeks to do is to ensure that interests other than pecuniary interests are also disclosed. In case, despite what I have said, there are noble Lords who still feel that I move this Amendment only because I am distrustful that these other interests would be disclosed failing a provision in the Bill, I would point out that it was the Government who put into the Bill the provision in standing orders that pecuniary interests should be disclosed.

It seems to me that the Government could have left it to the Assembly to put such an obviously necessary provision in their standing orders. It was not our suggestion, although we are happy with it. I do not propose to waste the time of the Committee with a lot of examples. All that I am putting forward is that if the Government thought it right, despite their frequent words of trust and confidence in the Assembly, that special provision be made in the Bill for the Assembly to include in its standing orders a requirement that pecuniary interests are disclosed, I see no reason why they should not apply the same reasoning to other interests. I doubt whether the noble Lord will propound the view that other interests do not matter. But if the Government stick to their view that it is necessary to spell out in the Bill that subsection (1) of Clause 16 is necessary, I am sufficiently optimistic to believe that this Amendment might be accepted. I beg to move.

Lord DONALDSON of KINGSBRIDGE

We have a long evening in front of us, so we will start it in an agreeable way. We recognise that some noble Lords feel strongly on this. When it was debated recently in the Scotland Bill, my noble friend Lady Stedman agreed to consider the point again and write to the noble Earl, Lord Selkirk, on this matter. In doing so, we shall bear in mind the points made in the noble Lord's speech and the need to keep the two Bills in line on this sensitive issue. When we have reached a decision, I will ensure that the letter that we undertook to send to the noble Earl, Lord Selkirk, is copied to the noble Lord, Lord Elton, and his colleagues. I hope that on this basis, the Opposition will not press this Amendment.

The Earl of SELKIRK

Perhaps I could thank the noble Lord for his personal reference to me. I hesitate to enter this select assembly where I have not been seen before. I thought that I could be helpful or perhaps disturbing if I came in; but I fully accept what the noble Lord has said. The noble Baroness, Lady Stedman, said that there was no difference and that "pecuniary" included other interests. This is a proposition which I do not think necessarily would be accepted by all courts of law. I do not think they are the same. I feel that it is quite wrong to assume that it is insulting to the Welsh. Corruption is a dangerous thing in all parts of the world, and we should never lag behind them in putting emphasis upon it. You have only to read the newspapers to know that it can take an astonishingly wide variety of forms. I will say no more than to thank the noble Lord for his words.

Lord ELTON

I am encouraged by what the noble Lord has said, and I should like to endorse what was said by my noble friend. In certain matters, nepotism is far more dangerous a form of corruption than any pecuniary interest. If you get, for instance, an incompetent teacher appointed because he is somebody's friend or nephew the damage lasts a great deal longer than if somebody has pocketed a few hundred pounds which he should not. This has been the subject of complaint by the National Union of Teachers in Wales—and they are, I think, politically closer to the noble Lord than to me. The South-Wales Argus carried an article on 20th September last year making this clear. There are myriad examples of this matter which I hope the noble Lord will bear in mind. I will not waste the time of the Committee as I think he will bear them in mind.

Lord CULLEN of ASHBOURNE

I am grateful to the noble Lord. The sort of examples that I had in mind are un-contentious ones like the discomfort of having, say, a local public library closed down and that sort of thing which could occur. I look forward to hearing from him by letter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.7 p.m.

Lord ELTON moved Amendment No. 61DB: Page 7, line 28, leave out ("500") and insert ("1000").

The noble Lord said: We continue in similar vein. In fact, I think there is a parallel with the Scotland Bill here. May I remind noble Lords of the Salmon Report which, in a similar context, recommended summary trial or trial on indictment and, in the latter case, the penalty maxima were to be two years' imprisonment or an unlimited fine. Only if the conviction was on summary trial could the penalty be limited to six months or £400. I am referring to the Royal Commission on Standards of Conduct in Public Life. We are talking about potentially vast sums: the building of bridges, motorways, sports stadia and, if my Amendment is negatived, the whole budget of the Welsh Development Agency. Therefore, the game would be worth the candle at the price at present stated.

Certainly, there was a discussion in another place on an Amendment which overlapped this one, but that tied the fine of £1,000 to establishing a register to be deposited with the Judicial Committee of the Privy Council which would contain disclosures of pecuniary interest. Again, one does not wish to quote cases too closely. The noble Lord is probably familiar with a recent article in the Daily Telegraph on the subject. Perhaps he does not read it; but there is a good deal of corruption in local government throughout the United Kingdom and it is usually associated with decades of one-Party rule—something which we on this side are trying to avoid. That is the greatest deterrent to the democratic expression of displeasure in this sort of thing.

I do not suppose that there is any great magic about the figure of £1,000 but in the article on 28th February to which I referred—"Favourite Sons in the Land of their Fathers"—it became quite clear that during the past two years there had been 20 corruption trials in South Wales and that 12 of the 30 convicted have been sent to prison. Some of them were prominent in the hierarchies we are looking at. I wish to deduce nothing from this whatever, except to say that temptation is just as rife in the area we are looking at as in others, and if an opportunity comes to put things right I should have thought it was welcome. I should like to know what the noble Lord feels about this. I beg to move.

Lord DONALDSON of KINGSBRIDGE

Once again, I shall not make a long speech about this Amendment. We accept that the Opposition feel very strongly—we learnt this in the proceedings on the Scotland Bill, and from what the noble Lord has said the same applies to this Bill—that the Assembly should have the power to suspend or exclude Members for breaching the standing orders relating to pecuniary interests. Accordingly, we have agreed to consider the matter urgently and, if necessary, return to it on the Third Reading of the Scotland Bill. Personally—not as a Minister in the Government but as an individual—I believe it to be entirely wrong to send people to prison unless they are dangerous. So I am particularly pleased that in the Scotland Bill the imprisonment sanction was dropped.

Lord ELTON

I am obliged to the noble Lord. In the light of what he has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord ELTON moved Amendment No. 61DC: Page 7, line 28, at end insert ("or to a sentence of imprisonment not exceeding six months or both.").

The noble Lord said: We are in the same area and I have the same intention as the noble Lord divines. I am interested to hear what transpired in the Scotland Bill. This is a probing Amendment and the Committee will appreciate that in extreme cases an Assemblyman could, under the terms of the Amendment, be given six months' imprisonment without the option and that that would bring him within the scope of Clause 5 and disqualification. The noble Lord has already brought out what I was hoping to draw from him by saying that, and the question of disqualification for corruption is already before Her Majesty's Government. Therefore, I think that the briefest reply from him would suffice. I beg to move.

Lord DONALDSON of KINGSBRIDGE

I was under the impression that we were taking these two Amendments together. If the noble Lord is satisfied with my reply to the first Amendment, may I hope that it applies to the second.

Lord ELTON

Indeed, it does. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord ELTON moved Amendment No. 62: Page 7, line 29, leave out subsection (3).

The noble Lord said: We are pressing on with such rapidity that my ancient joints can scarcely bear the pace. This Amendment seeks to leave out subsection (3) on page 29 of the Bill. The matter principally of interest here is that this is a provision which does not occur in the Scotland Bill and I should like to know why there is a difference of treatment. I beg to move.

Lord DONALDSON of KINGS-BRIDGE

The question is simpler than some I am asked. There is no provision in the Scotland Bill comparable to Clause 16(3). The reason is very simple. In Scotland, prosecution of offences is the responsibility of the procurator-fiscal service, which enables the national interest as a whole to be considered; but there is one great difference between the two systems. In England and Wales it is possible—and not uncommon—to have private prosecutions. Anyone can bring a prosecution. Thus, if the Bill were silent, anyone could launch a prosecution against a member of the Welsh Assembly. The case might have no merit, but it could take up a great deal of the member's time to refute it. Moreover, the way would be open for the threat of prosecution to be used to bring pressure on individual members.

For these reasons, the Local Government Act 1972 contained a provision (Section 94(2)) that no prosecution for a breach of the rules about pecuniary interests should be brought except by or on behalf of the Director of Public Prosecutions. There is no corresponding provision in the otherwise almost identical Section 38 of the Local Government (Scotland) Act 1973. The reason is that, as I have just explained, Scotland has a system of public prosecutors which we do not have in England. Thus, the effect of the two Bills is substantially the same. Members of the Assemblies are protected from frivolous or vexatious prosecutions and there is an opportunity for the public interest as a whole to be considered.

It should be noted that, unlike the Local Government Act 1972, the Bill does not require the prosecutions to be brought by or on behalf of the Director of Public Prosecutions. They can be brought with his consent. The reason for choosing the Director is that he is the only person available. Crime is not devolved to the Welsh Assembly and there will be no one in the devolved administration with functions which correspond. With the Director's consent a prosecution will be able to be instituted by anyone. It is most unlikely that the Director would refuse his consent in a proper case. The provision is thus not another "Whitehall apron string". In the Government's view it achieves the most sensible result possible in the circumstances.

Lord ELTON

I am obliged to the noble Lord for that very full answer which I shall read before I commit myself to an opinion upon it. I thank him for answering at such length and in such detail. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Subject committees]:

8.17 p.m.

Baroness ELLES moved Amendment No. 62A: Page 7, line 36, leave out from ("above") to end of line 37.

The noble Baroness said: This is a probing Amendment to find out exactly what the Government are thinking in relation to the functions of the Assembly. In Clause 17 the committees which are to be set up under the Assembly are given certain functions with which they are to deal. This is the normal procedure in many Assemblies. Indeed, in an Assembly of which I have the honour to be a Member, the European Parliament, the subject committees work very well and they are a very satisfactory way of dealing with the problems with which Parliaments are meant to deal, and with the kind of work that the Welsh Assembly will have to do this is the right way to proceed.

There is some doubt which creeps in in regard to the functions which the Assembly are empowered to undertake and exercise. In line 36 the Bills refers to: sections 9, 10, 11 above". I should like to know why it does not refer to Clause 13. Powers are given to the Welsh Assembly under that clause. I wonder why that clause was excluded. What is slightly more sinister from the rather critical mind is the end of that subsection which says: and with such other functions (if any) as the Assembly may determine". Normally when a body is set up its function and powers are clearly defined. We are not questioning whether they should have any or what they should be; but in a document of some kind when setting up a body, whether elected or nominated, these functions and powers should be set out. Their limitations and restrictions should be clearly pointed out both to the electors and the elected.

Not only are the functions of the Assembly apparently to be indeterminate so far as Parliament is concerned but it is the Assembly itself which is to decide and determine its own functions. This seems an extraordinary piece of devolution: that is, that a body should be given powers to decide its own functions regardless of statute. This is how I read that clause at the moment. I may be wrong and there may be some limitations on the functions; there may be limitations on the powers of the Assembly to determine what functions it has.

In this subsection there is no limitation at all that I can see which is imposed upon an Assembly in the selection and exercise of its functions. I think this is a particularly dangerous thing for an elected body in a country where we have executive and judicial or quasi-judicial functions performed by the same body, rather as we have in Parliament: a blending of executive and legislative powers—and even that is sometimes very much criticised as being an unsatisfactory way of governing a country. Nevertheless, that is a fact of life, not having a written Constitution, and this is the way that things have grown up. I beg to move.

I wonder, however, in the case of a new body which is being set up under this Bill, whether this is the right way to go about it. I should be grateful if the noble Lord could comment on the kinds of functions he thinks the Assembly will perform under this Clause and what restrictions or limitations may be imposed upon them.

Lord DONALDSON of KINGSBRIDGE

Subsection (1) of this clause requires the Assembly to appoint committees relating to the powers devolved under Clauses 9, 10 and 11. The provision which this Amendment seeks to delete enables the Assembly to give these committees such other functions as it may determine. So, for example, the subject committee dealing with housing will have to be given functions relating to the devolved housing powers. But, for example, the Assembly could, if it wished, ask the committee to draw up comments on a Government Green Paper on housing. This provision does not add to the powers of the Assembly in any way; it simply makes clear that the Assembly can, if it so decides, delegate additional functions to its subject committees. It is a simple and useful provision and without other substantive effects.

It is a mistake to believe that by amendment to the Bill—or in other ways—it is possible, or desirable, to confine the deliberations of an Assembly committee strictly to functions explicitly devolved. In exercising its functions, the committees will be bound to be concerned with developments or proposals on functions which the Assembly is not to exercise. Proposals for legislation at Westminster are a clear example. Are they not to consider the Government's proposals for new housing legislation which might well affect the Assembly's functions? And should not the Assembly be able to delegate such consideration to a subject committee? This would be the undesirable effect of the Amendment. I think the noble Baroness has read into the clause a great deal more than is there. I think it is a simple and innocent clause and I hope that I have removed some of her worries.

The Earl of SELKIRK

I wonder if I may just intervene: this is a very wide passage because it refers to, such other functions (if any) as the Assembly may determine". Does that include, for example, a settlement in Rhodesia or nuclear bombs? This does not seem to have any limitation at all. I do not know if that is the Government's intention.

Lord DONALDSON of KINGSBRIDGE

This is the same sort of thing, is it not? If the noble Earl really thinks that a responsible Welsh Assembly which has a committee on sewage will extend its discussions to include a Rhodesian settlement, he is in a world which I do not share. I do not think it is necessary to put in that sort of limitation. The kind of committee that I have suggested may have certain housing functions. It may sometimes wish to consider housing functions which are not part of its business but which are being discussed at Westminster; and there is no objection to it. I really believe that this is not a serious worry. I hope I have satisfied the noble Earl on this: that is very difficult to do, I know.

Baroness ELLES

The noble Lord said that this was simple and innocent. I am afraid I do not agree with him. I do not think it is as simple as it looks and certainly it is not as innocent as it may appear. However, I will think about this again. At the moment I think the drafting of this is unsatisfactory. I do not doubt that the Assembly must have a certain amount of discretion to discuss what it wants, but I would ask the noble Lord: if we are giving powers to a Welsh Assembly to discuss legislation in our Parliament, how is it that we here are going to be prohibited from discussing executive matters which are going to be dealt with by the Welsh Assembly?

Lord DONALDSON of KINGSBRIDGE

With respect, we are not prohibited from discussing them; we are prohibited from legislating on them, and that is quite a different matter.

Baroness ELLES

It comes very nearly to the same thing when you are actually having to take decisions. In fact the Assembly will presumably be taking decisions on some of its discussions: it will not just talk about some matter and then do nothing. There will be policy decisions being taken, although I accept that they will not be legislative—I know that the Welsh Assembly has no legislative powers. If the noble Lord will permit me, I shall look carefully at what he has said and reserve my right possibly to bring it up again at the next stage. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.26 p.m.

Lord ELTON moved Amendment No. 62B: Page 8, line 5, leave out ("leader") and insert ("chairman").

The noble Lord said: This is one of a group of probing Amendments and, if I have got the numbering right, I shall be speaking in effect also to Amendments Nos. 63B, 65, 66A and 67D. I hope I have not gone so very far wrong with those numbers! The point behind these Amendments—and it is always very puzzling when one sees two words in brackets and in quotes, and nothing else—is to enquire into the desirability or otherwise of this Parliament deciding in advance that in every case the chair and the leadership of the various committees to which these Amendments apply should be held by different people. I shall be guided as much by what my noble friend says as by what the noble Lord opposite says: but in the Bill as it stands the option is removed of combining them except as an artifice.

I would not presume to have any tremendously unshakable opinion on the matter, but I am very much interested in the advice given by the Association of County Councils which was referred to by the noble Lord or by one of his colleagues, and to which we listened closely. They are very experienced on the job and they say that the statutory requirement for the appointment of separate leaders in each subject committee and of the Executive Committee of the Assembly is not desirable. They consider this is unnecessary and they draw attention to the fact that the Government argued in another place that it is customary within local government to appoint leaders of committees and councils. Although that is true of some authorities, it is by no means general practice and there is certainly no statutory requirement for such appointments at present.

So what is being brought into this Bill is in fact a new principle which limits the choice of the Assembly; and it is perhaps amusing to find that on this occasion I am advocating a greater latitude of action whereas the noble Lord is about to defend, I do not doubt, a restriction of that latitude. In many local authorities, the chairman of a committee is acknowledged as leader, whereas in others the two appointments are separate. Surely this is a matter which should be left to the Assembly to determine for itself and there should be no statutory provision for the separate appointment of leader. I beg to move.

Viscount AMORY

I should only like to confirm what my noble friend has said. From my experience, there is no general practice in local government in favour of having a separate leader and chairman of committees. Some local authorities do it; others do not. I should like only to say that I am in entire agreement with him that it seems a little unnecessary to lay down the law, as it were, here by statute, compelling them to have a separate leader and a chairman if they are to do otherwise. I should have thought that this, anyhow, was a case where we are not attempting to restrict what the Assembly may do. I would have thought it was good sense to leave this to the Assembly's own choice, without laying down anything by statute.

Lord DONALDSON of KINGSBRIDGE

It is certainly in the reverse direction which, as we have said once or twice, is a change. The effect of these Amendments would be to upset the careful balance now achieved by Clauses 17 and 18. As the Bill stands, each subject committee is to have a leader and a chairman, both appointed by the Assembly. The chairman will be expected to adopt the traditional, impartial role essential for the good running of the committee. He must establish confidence in himself as an impartial arbiter, both among the committee membership and within the Assembly as a whole, very much along the lines of the traditions of chairmen of Committees of your Lordships' House and of the other place. As for the leader of each subject committee, he will, in effect, be the executive member. He is to be the focus for action and will put forward the views of the subject committee at meetings of the Executive Committee, of which he is to be a member. He will, of course, also put the majority Party's proposals to the subject committee.

If the two jobs were rolled into one, as these Amendments propose, there could be an excessive and undesirable concentration of power at the head of subject committees. Moreover, selection of chairmen would become more contentious. The question would arise whether the first priority should be to appoint a person suited to the policy-making role, or rather to appoint a member capable of chairing constructively the subject committee. If the second option was chosen, then the Executive Committee would be in danger of developing into a panel of chairmen, admirable as a relaxed talking shop, but of more dubious value as a decisive body charged with the execution of functional responsibilities. It is our contention that, by separating the roles of the leader and the chairman, the Bill successfully creates a system of checks and balances, under which the Executive Committee functions decisively and, at the same time, the proposals of the majority Party are subject to the scrutiny of a politically balanced subject committee headed by an impartial chairman.

Indeed, this point highlights two other important practical advantages which arise from separation of the two offices. First, the skills of chairmanship are different from the executive skills that will be required of someone who is to be both leader of a subject committee and a member of the Executive Committee Secondly, we have frequently heard during the debates on this Bill in this House and elsewhere that, in the foreseeable future, the Welsh Assembly is generally likely to be dominated by Labour members. Combination of the job of chairman and of that of leader could have the effect, perhaps unintended by the movers of these Amendments, of barring members from appointment as chairmen, because of their Party allegiance, irrespective of their known skill as chairmen. For all these reasons, therefore, I would urge the noble Lords opposite not to press these Amendments. I feel that we have the balance somewhere near right. It is quite difficult to get it right and I shall be very sorry to see that balance disturbed.

Lord ELTON

The noble Lord always gets most exercised by the prospect of a Division, when I have announced a probing Amendment. He need not dissuade me from that, as I have already said that I shall not press it. But this has revealed an interesting philosophy. My first thought was that the noble Lord was thinking of the chairmen as if they were mayors who had to be free for honorific operations, but he was not. The noble Lord has made a distinction between the function of chairmen, who, when gathered together, are apt to form admirable, relaxed talking shops, and leaders who will be full of executive drive. The fact that the same person held office in both senses, in consecutive years, makes that a difficult contention.

But when he said that the skills of chairmanship are different from those of leadership and of the Executive Committee, one has to draw his attention to the provision in Clause 18 where the principle which he has set out as being sacrosanct is clearly breached. The Bill states on page 8 at line 18, the person named by the Assembly as chairman of the Executive Committee shall also be its leader". So it is clearly possible to be both chairman and leader, and it is, in fact, desired by the Government that one person should be both chairman and leader. This is a principle which I feel the noble Lord has not as yet effectively adduced.

Of course, the Amendment as drawn, unless there were consequentials or, at least, referentials, would interfere with the checks and balances which the noble Lord has set out which, in the terms in which he has set them out, with the likely domination by Labour members that he has already said is expected, opens the prospect of the membership of the agreeable talking shop, and the rôle of chairman, to members of other Parties, but the keen executive rôle to members of the Labour Party. Of course, the principle of representation of all Parties in committees is one which we respect and think is not taken far enough. But I shall be interested to know how the noble Lord explains the fact that where it is totally undesirable to have the same person being leader and chairman in the policy committee, it is quite undesirable that it should be in any other form but in one person in the Executive Committee.

Lord DONALDSON of KINGSBRIDGE

I do not think that this is a very difficult problem. The subject committees are a form of power sharing, which a good many of us who have worked in Northern Ireland in one way or another have always been looking for, and have so far not achieved. The Executive Committee is like a Cabinet and the head of that committee is like a Prime Minister, who is a chairman but political. I believe that this is the intention of the set-up and I think that the clauses as they now stand carry it out accurately. I do not really think that there is anything to worry about here.

Lord ELTON

I am obliged for that, and of course it puts a new perspective on our next Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.38 p.m.

Lord ELTON moved Amendment No. 63: Page 8, line 8, leave out ("section 18") and insert ("sections 18 and 22").

The noble Lord said: This Amendment approaches the difficult question of the organisation of committees at a really central point, because it is in the Executive Committee, as we are all, I think, clear, that the real power will rest. The noble Lord has generously admitted that it is likely that there will be nomination by one Party, and, equally generously, has said that power should be shared at least in the subject committees; and I respect and welcome that. None the less, the real action will be in the Executive Committee, because, as if it were a finance and general purposes committee, it will hold all the strings, as the Assembly is enabled to remit matters to it and the Committee is enabled to remit matters to the chairman, who is also to be the leader.

As I have already said on a number of occasions—and I think my noble friends have borne out that they share my worries —the principal matter for concern to us in this Bill is the fact that we can see no provision that will require this body to be other than a closed shop. Indeed, it is designed—the noble Lord told us on the last Amendment—so that the leaders who will compose it will all be chosen from the majority Party. The noble Lord said that it is a Cabinet, and he added that the leader or chairman will, in some respects, be discharging the functions of a Prime Minister. In that way, the main decisions are all taken by a body that is unsupervised, except by the Assembly, and not open to it.

We have looked for a means to counter that, which is to ensure that members of other Parties are not present in sufficient numbers to inhibit its solidarity or to delay its activity, but are present in sufficient numbers to act as watchdogs, if you like, and are able to reassure their colleagues in the Assembly itself that all is being conducted as it should be. I am aware of the preference, before the election, of the Labour Party executive committees in Wales for the particular "mix" of committee and cabinet systems which the Bill projects. I do not think that the Welsh people, who have considerable experience of the product of closed government—a fact which we have already debated in connection with Clause 16—would want to see the same conditions reproduced on this massive scale, offering such succulent temptations to the fortunate few who are entitled to sit around that privileged table behind those very thick doors.

I am not being partisan in the political sense. As I said at Second Reading, it might be more difficult for me to make the point if what was in prospect was a permanent succession of Conservative rulers of Wales. I think, however, that the point would have to be made and that it would have to be made in this House. Therefore, I hope that the noble Lord will reply in the spirit in which I have moved the Amendment. I beg to move.

8.41 p.m.

Lord DONALDSON of KINGSBRIDGE

I shall reply, as always, in the same spirit as the noble Lord, which is to try to reach the best solution to the problems which face us both, but I shall reply at rather greater length than usual because I think that this question is very important. The Government's objective in the group of clauses which we are now in the middle of—that is, Clauses 14 to 23 relating to the conduct of business—has been to set out in broad outline the way in which the Assembly is to be organised to conduct its business. There are two built-in principles—a flexible and efficient system of working and wide participation by Members in the work of the Assembly.

The Assembly will inherit a wide range of functions and, in the Government's view, it is in the interests of efficient administration to require the Assembly to set up subject committees to embrace all its functions. This will, among other things, enable members of the Assembly to specialise in matters in which they have a particular interest, and so to contribute effectively to the Assembly's work. The Bill also provides, in Clause 22, which we have not yet reached, for these committees to be balanced so as to reflect the political composition of the Assembly, so far as this is practicable. This will ensure that all parties represented in the Assembly can participate in the Assembly's work.

Similarly, the Government think that it is sensible to provide that each subject committee shall have both a chairman and a leader, or executive member. The chairman will be expected to adopt the traditional impartial role. The leader will have an executive role. He will put forward the majority Party's proposals and, except in the case of the Chief Executive, will act as the link between his committee and the Executive Committee.

Turning now to the Executive Committee, the Bill provides in Clause 18 that it shall be composed of the leaders of the subject committees and may include additional members up to one-third of the number of those leaders. So far as that is concerned, therefore, it need not be purely from the one side.

All this provision is, if I may say so, carefully worked out and balanced. It does not impose a rigid system on the Assembly, but enables the Assembly to adopt a system tailored to its own requirements. In some respects it may be possible and convenient for the Assembly to work through subject committees; but the likelihood is that for much of its work it will be necessary for the Assembly and its committees to delegate powers to the executive members. This will be particularly so in matters which require urgent and day-to-day decisions, and in matters calling for confidential or urgent action. The Executive Committee will also have the vitally important tasks of co-ordination and resource allocation, and for these purposes the Assembly may well decide that the committee should reflect the views of the majority Party or Parties.

Any delegation of executive powers which the Assembly might decide to adopt is made subject in the Bill to the need for political balance, and hence participation, in the subject committees. These committees are there to keep a check on the actions of the leaders, who will regularly require the approval of the subject committees for their exercise of delegated powers. Furthermore, the Bill makes it possible, though this is a matter for the Assembly, to add some extra, perhaps non-majority Party, members to the Executive Committee.

I suggest that we must be careful in seeking to add to or disturb the structure set out in the Bill. Essentially what the Amendments are aimed at is, as I said before, a form of power-sharing. A system is proposed which is not only untried but which would be totally uncertain in effect. The Amendments, I suggest, go very much further than aiming for an improvement in the Bill; they propose a wholly novel constitutional arrangement. While we can welcome the experience of the Conservative Party developing ideas for the first time of a new constitutional device for devolution to Wales—a belated conversion—I suggest that this has hardly been thought through thoroughly. How would it work? How would elected representatives of the Welsh people be accounted responsible? The Bill itself provides for a fair balance on the subject committees, but it seems to the Government wholly wrong to force this concept on the Assembly for the Executive Committee as well.

I should be surprised if the proposers were to urge that such a system be adopted at Westminster. It will be important also for the Assembly to be reasonably decisive and generally capable of carrying out its responsibilities. This makes it necessary for the majority Party in the Assembly, or a combination of interests if there is no majority, to be responsible and to be seen to be responsible. The focus of this responsibility will be the Executive Committee, composed mainly of the leaders of the subject committees. If the strength of will of the Executive Committee is weakened, as I think it would be weakened by the adoption of these Amendments, then there are grave dangers for the good government of Wales. For one thing, it might force the majority, to adopt a "caucus" system.

Finally—and I apologise for having spoken at such length, but I think that it is important—I should say a word about the suggestion that there will be permanent one-Party government in the Assembly. We do not know. If that is what the electors happen to want, who are we to say that they shall not have it? But it is important to recognise that the electors will be voting in a different context from that of Westminster elections. They will be close to the Assembly and able to watch day by day what it is doing. If they do not like what they see, they will be able to reflect that dislike in the ballot box.

I hope that the Assembly will not be shackled by a system both untried and uncertain in effect that could, I believe, face it with severe and unwarranted difficulties and that second and wiser thoughts will prevail. As this is a probing Amendment, I hope that I have said enough to convince the noble Lord. The noble Lord indicates that it is not a probing Amendment. Therefore, I hope still more that I have said enough to convince him.

Lord ELTON

I cannot say that the noble Lord has convinced me. I can disabuse him of his hope very rapidly. The noble Lord speaks at times as though we were speaking of eggshells rather than Welshmen. I do not think that the checks and balances to which we have referred are so delicate that they will be wrecked by extending one stage further the principle that the noble Lord or his friends have introduced into this Bill. He believes in the principle of power sharing. He is glad to see it evidenced where critical power is not, but hesitates to put it where it is. He sees grave dangers for the good government of Wales in introducing into the chamber of the Executive people of a different political persuasion in sufficient number, not to influence its proceedings but simply to make sure that those proceedings are known. He says he thinks that this may introduce a caucus system. It seems to me that we already have a caucus system in the Bill.

The noble Lord tried to sugar the pill by saying that there was allowance for up to one-third of the number of the Executive Committee Members to be drawn from those who were not already leaders. But this is a permissive power. He said that they might perhaps come from the non-majority Party. The very great temptation, where so much power rested over such large resources, would be to make all safe and have nobody to rock the boat. This would happen in almost any Assembly if it were given the choice, and not simply in the one in Wales.

It seems to me that we have laid our finger on the centre of the tangle. It is at this point that we decide whether or not the one-Party majority, which some of us expect to occur in Wales, is to be built into the executive machine, or whether the windows are to be thrown open, or the door opened a crack. This is a matter which should be discussed in another place. The only way in which we can bring that about is by amending the Bill at this point. That is what I shall ask my noble friend to do.

8.52 p.m.

Their Lordships divided: Contents, 57; Not-Contents, 43.

CONTENTS
Ardwick, L.	Hale, L.	Plant, L.
Aylestone, L.	Hamnett, L.	Raglan, L.
Balogh, L.	Harris of Greenwich, L.	Rochester, L.
Banks, L.	Hatch of Lusby, L.	Samuel, V.
Barrington, V.	Henderson, L.	Seear, B.
Bernstein, L.	Houghton of Sowerby, L.	Shinwell, L.
Birk, B.	Howie of Troon, L.	Simon, V.
Blyton, L.	Jacques, L.	Stamp, L.
Boston of Faversham, L.	Janner, L.	Stanley of Alderley, L.
Brockway, L.	Kilmarnock, L.	Stedman, B.[Teller.]
Caccia, L.	Kirkhill, L.	Stewart of Alvechurch, B.
Collison, L.	Lee of Newton, L.	Stone, L.
Crook, L.	Leonard, L.	Strabolgi, L.
David, B.	Llewelyn-Davies of Hastoe, B.	Taylor of Blackburn, L.
Davies of Leek, L.	Lloyd of Hampstead, L.	Taylor of Mansfield, L.
Davies of Penrhys, L.	Lloyd of Kilgerran, L.	Wedderburn of Charlton, L.
Diamond, L.	Lovell-Davis, L.	Wells-Pestell, L.[Teller.]
Donaldson of Kingsbridge, L.	McGregor of Durris, L.	White, B.
Elwyn-Jones, L. (L. Chancellor.)	McNair, L.	Wigg, L.
Foot, L.	Maelor, L.	Wigoder, L.
Gaitskell, B.	Morris of Borth-y-Gest, L.	Willis, L.
Gardiner, L.	Moyne, L.	Wilson of Radcliffe, L.
Glenamara, L.	Norwich, V.	Winterbottom, L.
Gordon-Walker, L.	Paget of Northampton, L.	Wise, L.
Goronwy-Roberts, L.	Peart, L. (L. Privy Seal.)	Wynne-Jones, L.
Greenwood of Rossendale, L.	Phillips, B.
Grey, E.	Pitt of Hampstead, L.
NOT-CONTENTS
Alexander of Tunis, E.	Ellenborough, L.	Mowbray and Stourton, L.
Alport, L.	Elles, B.	Newall, L.
Amherst of Hackney, L.	Elliot of Harwood, B.	Northchurch, B.
Amory, V.[Teller.]	Elton, L.	O'Hagan, L.
Avon, E.	Emmet of Amberley, B.	Penrhyn, L.
Balfour, E.	Exeter, M.	Rankeillour, L.
Belstead, L.	Ferrers, E.	Rathcreedan, L.
Bledisloe, V.	Fortescue, E.	Rochdale, V.
Boothby, L.	Gainford, L.	Sandford, L.
Bridgeman, V.	Glenkinglas, L.	Sandys, L.
Brougham and Vaux, L.	Gray, L.	Selkirk, E.
Campbell of Croy, L.	Gridley, L.	Sempill, Ly.
Carrington, L.	Hailsham of Saint Marylebone, L.	Sharples, B.
Cathcart, E.		Skelmersdale, L.
Clitheroe, L.	Harmar-Nicholls, L.	Strathcona and Mount Royal, L.
Colville of Culross, V.	Henley, L.
Cork and Orrery, E.	Hylton-Foster, B.	Swinfen, L.
Craigavon, V.	Kinloss, Ly.	Tenby, V.
Craigmyle, L.	Kinnaird, L.	Thorneycroft, L.
Cullen of Ashbourne, L.	Kinnoull, E.	Tranmire, L.
Daventry, V.	Lauderdale, E.	Trefgarne, L.
De Freyne, L.	Lindsey and Abingdon, E.	Tweeddale, M.
Denham, L.	Long, V.	Vickers, B. [Teller.]
Derwent, L.	Loudoun, C.	Vivian, L.
Digby, L.	Lyell, L.	Ward of North Tyneside, B.
Dundee, E.	Middleton, L.	Westbury, L.
Ebbisham, L.	Monson, L.	Wilson of Langside, L.
Eccles, V.	Mottistone, L.	Young, B.

On Question, Whether the said Amendment (No. 63) shall be agreed to

CONTENTS
Alexander of Tunis, E.	Gray, L.	Rochdale, V.
Alport, L.	Gridley, L.	Rochester, L.
Amory, V.	Harvington, L.	Sandford, L.
Auckland, L.	Hunt of Fawley, L.	Sandys, L.
Balfour, E.	Hylton-Foster, B.	Seear, B.
Belstead, L.	Kinnaird, L.	Selkirk, E.
Campbell of Croy, L.	Lloyd of Kilgerran, L.	Sharpies, B.
Cathcart, E.	Long, V.	Skelmersdale, L.
Colville of Culross, V.	Lyell, L.	Stanley of Alderley, L.
Cork and Orrery, E.	Middleton, L.	Strathcona and Mount Royal, L.
Cullen of Ashbourne, L.	Monk Bretton, L.
Denham, L. [Teller.]	Monson, L.	Swansea, L.
Digby, L.	Mottistone, L.	Tranmire, L.
Dundee, E.	Mowbray and Stourton, L. [Teller.]	Trefgarne, L.
Elles, B.		Trenchard,V.
Elliot of Harwood, B.	Newall, L.	Tweeddale, M.
Elton, L.	Northchurch, B.	Vickers, B.
Exeter, M.	O'Hagan, L.	Ward of North Tyneside, B.
Fortescue, E.	Rankeillour, L.	Young, B.
Gainford, L.	Redesdale, L.

NOT-CONTENTS
Ardwick, L.	Hamnett, L.	Raglan, L.
Birk, B.	Harris of Greenwich, L.	Samuel, V.
Brockway, L.	Hatch of Lusby, L.	Stedman, B.
Collison, L.	Houghton of Sowerby, L.	Stewart of Alvechurch, B.
David, B.	Howie of Troon, L.	Stone, L.
Davies of Leek, L.	Janner, L.	Strabolgi, L. [Teller.]
Davies of Penrhys, L.	Kagan, L.	Taylor of Blackburn, L.
Donaldson of Kingsbridge, L.	Kirkhill, L.	Taylor of Mansfield, L.
Elwyn-Jones, L. (L. Chancellor.)	Lee of Newton, L.	Wallace of Coslany, L.
Gaitskell, B.	Leonard, L.	Wedderburn of Charlton, L.
Gardiner, L.	Llewelyn-Davies of Hastoe, B.	Wells-Pestell, L.
George-Brown, L.	Lovell-Davis, L.	White, B.
Goronwy-Roberts, L.	McGregor of Durris, L.	Winterbottom, L. [Teller.]
Greenwood of Rossendale, L.	Morris of Kenwood, L.
Hale, L.	Ponsonby of Shulbrede, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

9 p.m.

Baroness ELLES moved Amendment No. 63A: Page 8, line 12, after ("chairman") insert ("in accordance with the d'Hondt system").

The noble Baroness said: In dealing with this Amendment I should like to deal also with Amendments Nos. 63B and 64. The name "d'Hondt" has obviously aroused a certain amount of interest and I am happy to be able to introduce into this Welskdebate a name which is at least not English, so that it adds slight colour to an other wise very English activity. Those of your Lordships who have been connected with the European Parliament will know at once who I mean by "M. d'Hondt". In fact he has haunted our lives from the time when we first joined the Community.

The purpose of the d'Hondt system, which seems to me to be one of the fairest systems that I nave come across for the allocation of seats and the allocation of positions, is based on a kind of proportional representation, so that the number of chairmanships which would be allotted to any one Party would be based proportionately on the number of people in any given Assembly. For instance, where there is a majority of one Party, broadly speaking, you get a majority of chairmanships; the second largest Party gets the second largest number of chairmanships, and so on. This, therefore, distributes the chairmanship of committees in a fair way throughout the different political Parties of the Assembly. This would also continue if there were to be vice-chairmen of these committees—which no doubt there will be, although they are not spelled out in Clause 17. These would also be allocated in the same way. The use of this system would ensure a fair balance among the political Parties, giving the majority of chairmanships to the largest Party but also giving the possibility to even the minority Parties of having the chairmanship of one of the committees.

If we look at Schedule 2 to the Bill, which sets out the various devolved functions of the Assembly, and take that in conjunction with Clause 17(1) of the Bill, there will obviously be a good many committees, unless some of these committees are going to deal with two or three subjects together. The number of subjects covered in the Schedule reaches 18. There are 18 Parts to Schedule 2, excluding the registration services in Part XIX and General under Part XX, so there might be anything up to 18 committees. I think it would appear to anybody including the Welsh people, that to have 18 chairmen coming from the same Party would be absolutely unfair and un balanced in any such Assembly, and this particular system would ensure that members of other Parties should have a chance to chair at least some of these many committees.

This is a system which has been known to work fairly over many years. To my knowledge there has never been dissension in the European Parliament over the use of the system. It was accepted when we joined the European Parliament, and of course by members of the Socialist Party when they joined it. Not only would it ensure a balance to the Parties, but it can also be used to take into account the matter of geographical area—whether there is a chairman coming from North Wales or South Wales, or perhaps the West coast, and one could also take into account the fact of whether they come from a rural or an urban area.

I shall not go into the detailed mechanics of how it works out, but it is a sure way of guaranteeing fair distribution taking into account these three factors: first, political Parties; secondly, the regional origin of the chairman and, thirdly, the type of area that he comes from, whether urban or rural. So all aspects of political life in Wales could be fairly represented among the chairmen of the committees because, whether or not they will be members of the executive committee, they will in fact play a considerable role in the success of the Assembly. If there are not good chairmen in these committees the Assembly itself will not be able to function efficiently. So I recommend to your Lordships this method of ensuring that the chairmanship of these committees will be fairly and equitably balanced among the Members of the Assembly I beg to move.

9.6 p.m.

Lord LLOYD of KILGERRAN

I should like to ask the noble Baroness a question on a point of clarification. I understand her to say that this is a form of proportional representation for the purposes of dealing with the internal arrangements in the Assembly. As the noble Baroness will be aware, I was involved in this question of proportional representation with the noble Lord, Lord Harlech, earlier in this matter. He has had experience of this system in working a form of proportional representation to give a fairer method of election and securing advantages for the minorities.

Baroness ELLES

I should like to confirm what I said earlier. It is a form of assuring a fair balance among the Parties. In this instance I am referring to chairmanships and not to the number of Members or the way in which the Members are elected; but among the Members who are elected it is, to my knowledge and experience, the fairest method of distributing these positions, taking into account the various interests. Those who are interested may read about it in How Democracy Votes written by Enid Lakeman, who of course is the expert on proportional representation, or they can ask any of their colleagues who are concerned in the European Parliament.

Lord LLOYD of KILGERRAN

I am much obliged.

Lord DONALDSON of KINGSBRIDGE

The proposal in this group of Amendments is that the chairmen of the subject committees should be named by the Assembly in accordance with the d'Hondt system—however one should pronounce it. I think the Dutch sound the "h" but I cannot quite remember.

Baroness ELLES

It is a Belgian name, actually.

Lord DONALDSON of KINGSBRIDGE

They certainly do. It is apparently a reference to a system of allocating seats by proportional representation devised by Victor d'Hondt of the University of Ghent, and I am not at all surprised that the noble Lord, Lord Lloyd of Kilgerran, has a soft spot for any such system. Under this system the first seat goes to the Party with a majority of votes. A calculation is then made of the average number of votes per seat in the case of each Party. The Party which would have the highest average number of votes per seat is then allocated the second seat. The procedure is repeated until all the seats have been allocated. If this system were applied to the appointment of committee chairmen by the Assembly it would presumably ensure that the appointees did not all belong to the Party with a majority of seats in the Assembly. Depending upon the make-up of the votes, the other Parties would be likely to take a share of the appointments.

Under the Government's proposals the chairmen will have the normal impartial role and will be selected for their ability as chairmen; it is surely better to leave it to the Assembly as to how chairmen are selected. There is no suggestion that chairmen will all come from the majority Party, though there is a suggestion that the Executive members will all come from the majority Party. The intention of the Bill is that the Executive Committee should be a powerful and effective body, that it should not be a body spread among the Parties but should—as in this country—be a one-Party body, with power-sharing sub-committees advising. That is what we are putting forward, and, with respect, I think it would be a great mistake to alter it.

Baroness ELLES

The noble Lord was talking about selection by the Assembly of the chairmen of these committees. If it is not too much of a bore to refer again to the European Parliament, there the chairmen are also selected, although the word in the Bill is not "select" but "nominate"; I suppose there is a certain difference between the two words, and they must have been put there for a purpose. But the fact is that, if an Assembly is to nominate certain individuals, they have nevertheless to devise a way of doing so. They cannot just pick a lot of names out of a hat. I think everybody in the Assembly would deplore it if it was just a pal of so-and-so who was going to be nominated. They have to work out some kind of system by which to do it. All I wanted to establish was that the chairmen should not be nominated by the Assembly just because they all belong to one political Party or they all happen to come from one part of Wales. I am not here disputing the question of the members of the Executive Committee; I am simply talking about the chairmen of the subject committees. These subject committee chairmen should he fairly distributed among members of the Assembly. They must take into account Party, the area from which they come and the type of region they represent.

Obviously, I am not going to press this Amendment, but I think it is something that should be given as guidance to the Assembly. I do not think any new body would resent any form of guidance coming from the Government as to how they should nominate their chairmen. There is nothing in the Treaty of Rome which says anything about the Assembly, except that one should be set up. Frankly, I think it would have been very much better than wasting a lot of time discussing what these people are going to do and how they are going to do it. I think they should have been left considerably more leeway in how they set up their own organisation and what they do with it. If you are going to make them nominate their chairman, I would suggest that guidance should be given as to how these chairmen are to be nominated.

Lord DONALDSON of KINGSBRIDGE

The noble Baroness has confused me rather.

Lord TREFGARNE

Well done.

Lord DONALDSON of KINGBRIDGE

It is not very difficult to do, but the noble Baroness has succeeded in doing it. It seems to me that we have gone very little further than the Treaty of Rome. We have left this almost entirely to the Assembly. The noble Baroness is asking us to impose on this freedom we have given them a specific Belgian plan for selection. My own view is that as the Assembly will be elected from all over the Principality—some people from North Wales, some people from South Wales, some from the country, some from the towns— they are a very good body to decide on who they want to appoint as chairmen to the subject committees. I think it would be a pity to alter it.

Lord LLOYD of KILGERRAN

The noble Lord, Lord Donaldson of Kings-bridge, recognised that I have a certain amount of sympathy for this Conservative Amendment. It seems to me to make some constitutional progress. One of the curses, at least of local authority government, in this country is that, where there is a predominant Conservative administration or a predominant Labour administration in a local authority, it is very unlikely that any other Party will obtain the chairmanship of any of their committees. This difficulty is to be found in so many local authorities. I thought that this proposal seemed to indicate that, if there was one Party dominating the Welsh Assembly, at least all the chairmen would not necessarily be members of that Party.

Baroness ELLES

I am grateful to the noble Lord, Lord Lloyd of Kilgerran, for supporting this Amendment. I said earlier that I was not going to press it as I did not consider that this was something that this Parliament should lay down, but in view of the amazing number of Members of your Lordships' House who did not appear to have heard of M. d'Hondt I felt that perhaps the debate had been worth while. Even if those Members of your Lordships' House still have not heard of him and do not know about him, perhaps the Members of the Welsh Assembly will now be able to know about him. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63B and 64 not moved.]

On Question, Whether Clause 17, as amended, shall stand part of the Bill?

9.15 p.m.

Lord ELTON

I have a point which your Lordships will have noticed I was trying to bring out earlier. Can the noble Lord give us the meaning of the word "name" in line 11? The line reads: the Assembly shall name one of the members of such committee as its chairman and another as leader…". It is only a very small point. I take it that it is intended that the Assembly shall name them by an electoral process, but in fact that is not stated. I do not want to be accused of nit-picking; therefore I shall make nothing more of it than to ask whether in fact what the noble Lord has in front of him has the effect that he would wish it to have.

Lord DONALDSON of KINGSBRIDGE

The answer is yes.

Clause 17, as amended, agreed to.

Clause 18 [The Executive Committee]:

[Amendment No. 64A not moved.]

9.16 p.m.

Lord ELTON moved Amendment No. 65: Page 8, line 16, after second ("of") insert ("all").

The noble Lord said: This is a small point of clarification only but since the noble Lord has revealed himself so sensitive to the delicate mechanism of checks and balances, it does relate to a matter which he may find of interest. Clause 18, as it stands, reads: One of the committees appointed under section 17 above shall be known as the Executive Committee and shall consist of the leaders of the other committees so appointed…". It is really a question of the usage of the English language. Does it or does it not mean the leaders of all the other committees, or does it merely mean that it may be made up of some of them? The point might have substance at a later time though it would not appear to have at the moment; but there are circumstances in which it could be important.

Lord DONALDSON of KINGSBRIDGE

It means all.

Lord ELTON

Leaving out the word "all" has the same force as putting it in. Is that what the noble Lord is saying?

Lord DONALDSON of KINGSBRIDGE

The noble Lord asked me a question—does it mean all? I answered, "Yes, it does mean all."

Lord ELTON

The noble Lord is not going to confuse me. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Lord ELTON

had given Notice of his intention to move Amendment No. 66: Page 8, line 18, leave out ("one-third") and insert ("one-half"). The noble Lord said: On page 8, line 18, we suggest leaving out "one-third" and inserting "one-half". This is in fact pursuing the question of the balance within the committee. I think we have covered this ground already. I was delighted to see by the surprise on the noble Lord's face that he agrees with me, and I shall not move the Amendment.

[Amendment No. 66A not moved.]

Lord ELTON moved Amendment No. 67: Page 8, line 18, after ("leaders") insert ("appointed subject to section 22 below").

The noble Lord said: This is consequential on Amendment No. 63. As your Lordships will see, through the Amendment we put in, we are making the Executive Committee subject to the provision of balance of Party within the committee laid down in Clause 22. In order to maintain consistency it is necessary to put this in. I beg to move.

Lord DONALDSON of KINGSBRIDGE

I think I have to accept it.

On Question, Amendment agreed to.

9.20 p.m.

Lord SWANSEA moved Amendment No. 67B: Page 8, line 20, leave out from first ("be") to end of line and insert ("the Leader of the Assembly").

The noble Lord said: I beg to move Amendment No. 67B, and I shall speak also to Amendment No. 67E. No doubt it will also be for the convenience of your Lordships to discuss Amendments Nos. 67C and 67D in this context. This part of the Bill deals with the title of the chairman of the Executive Committee, and it is proposed in the Bill that he shall be known as the Chief Executive.

It seems to me that this title is entirely inappropriate in these circumstances because for some years, especially since the reorganisation of local government and the setting up of larger local government areas, the time-honoured title of clerk to a local authority has, in many cases, been superseded by the title of chief executive. So it has already taken on a special meaning in relation to local government. Of course it means a salaried, non-elected officer of a local authority. So this title has acquired a generally understood and accepted meaning in local government and other administrations which in no way relates to the position of this office. It is entirely inappropriate that it should be applied in this case to an elected Member of the Welsh Assembly who occupies the office of chairman of the Executive Committee.

Another point with which I should like to deal is the use of the word "its" in line 20, which to me is ambiguous because it is not clear whether it refers to the leader of the Executive Committee or of the Assembly. I think that the situation should be clarified. If it means that the chairman of the Executive Committee shall also be the leader of the executive Committee then it is simply superfluous verbiage. I may be wrong, but I believe that the intention is that it should mean that the chairman of the Executive Committee shall also be the leader of the Assembly, which to me makes much more sense. Therefore, my Amendment is designed to make that point clear.

As the noble Lord, Lord Donaldson of Kingsbridge, said a short time ago, the Executive Committee is equivalent to the Cabinet in a legislative body. The chairman of that Committee occupies the position equivalent to that of Prime Minister. Therefore, it is entirely appropriate that he should also be defined as the Leader of the Assembly. One cannot draw an exact parallel between the United Kingdom Parliament and the Welsh Assembly, as Parliament is a legislative body and the Assembly is not. Therefore, in the other place we have the Prime Minister as well as the Leader of the House. The Leader of the House, of course, is a very honourable office, and so it is in your Lordships' Chamber. We accord to the whole of that office the respect due to that office. However, in the Welsh Assembly, which will be an executive and not a legislative body, it seems logical that the Leader of the Assembly should occupy the equivalent position to that of the Prime Minister in the United Kingdom Parliament. I look forward to hearing what other noble Lords have to say in connection with this and the connected Amendments. I beg to move.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)

I must advise your Lordships that if this Amendment is agreed to I cannot call Amendment No. 67C.

Lord ELTON

That is an appropriate introduction to my thanking my noble friend for suggesting that I should join in at this stage. Your Lordships will see that our Amendments are very similar. The Amendment of my noble friend would result in the Bill reading as follows: …the person named by the Assembly as chairman of the Executive Committee shall also be the Leader of the Assembly ", with initial capitals for "Leader" and "Assembly" thus making that the official title. However, our Amendment would simply finish at "leader", leaving out the words: and shall be known as the Chief Executive", thus not giving any title to the person to whom we refer. The noble Lord will remember the furious and poetic exchanges during an earlier stage when it was quite clearly the opinion of the House that the name of the chairman of the entire Assembly was a matter for the Welsh Assembly itself to decide upon. It seems to me that if that was the opinion of the House in that case, it should be the opinion of the Committee in this case. Therefore, my Amendment, which your Lordships may or not prefer to that of my noble friend, leaves that the case.

Lord HARVINGTON

The word "executive" has been worrying me quite a bit. It seems to me to be a word which is quite new in the constitutional sense. I have been thinking about all the various Government organs that we have had in our history and I cannot think of anywhere where this word "executive" has been used in the sense in which it is used here. When the noble Lord comes to reply, perhaps he can tell us how this word came to be thought up. Why do we call someone an "executive" in a case like this when the word "executive" is on almost everybody's lips today, everyone knowing exactly what it means? It has a very definite connotation in our daily life in this country today. This word does not seem to me to have any relationship to the accepted use of the word as we understand it today. I hope that the noble Lord can say why this should be and why the solution which has been put forward seems to be the more attractive one.

9.27 p.m.

Viscount AMORY

I think that my noble friend Lord Harvington is quite right that "Chief Executive" is a phrase that is very much in modern fashion at the present time. However, if it is used here, I think that there will be a great deal of confusion in local government circles generally because of the fact that, as my noble friend has said, in the rest of local government the chief executive designates the senior paid official. I should have thought that it was worthwhile for the Government to give a little more consideration to this, either leaving it to the Assembly to decide for itself, or thinking up some designation which would be a little different and which would indicate more clearly that this is not the senior paid official but the senior elected Member of the Assembly. I do not know whether the noble Lord can tell us whether the Government gave consideration to other possible designations before they pitched on "Chief Executive".

Lord SEGAL

I am curious to know to what extent the Government are anxious to dig in and insist on this term "Chief Executive". To many of us, the title "Chief Executive" has supplanted the title formerly known as the "Town Clerk". It has rather glorified the office of the town clerk, but I am not quite convinced that it would glorify the office of the head of the Assembly.

Lord LLOYD of KILGERRAN

I must say that when the noble Lord, Lord Swansea, was addressing your Lordships I had a certain amount of sympathy for this proposition. Being somewhat realistic in these matters, is it not better to leave the words as they are in the Bill? Whatever words are put in to describe any individual in the Welsh Assembly, the Welsh Members of that Assembly will, in due course, choose their own.

Lord ELTON

That is not the point. The point is what we shall find in the legal documents that are circulated and in newspaper reports. Some people will think that they are addressing the equivalent of the town clerk when, we have just been told, that they would be addressing the equivalent of the Prime Minister. There is a difference.

Lord LLOYD of KILGERRAN

The noble Lord is raising certain hypothetical differences which are quite unrealistic in the context of a Welsh Assembly.

Lord DIGBY

I should like to support my noble friend on this, because it is quite clear in all local government circles that the chief executive is a paid official and not an elected member. I am just wondering whether the phrase "Executive Chairman" might be a possible alternative. I throw that out as a possibility.

Lord DONALDSON of KINGSBRIDGE

A number of points have been raised here. Let me begin with the discussion of line 20, which is the point raised by the noble Lord, Lord Swansea. The Bill says: the person named by the Assembly as chairman of the Executive Committee shall also be its leader". That means the leader of the Executive Committee, not of the Assembly. Clause 15(2) requires the election of a presiding officer for the Assembly, so I think we can be clear that the noble Lord's suggestion was wrong, and I hope he is now satisfied on that point.

Lord SWANSEA

Surely the term presiding officer would be equivalent to that of Speaker, and not of leader of the Assembly?

Lord DONALDSON of KINGSBRIDGE

Whatever it would be equivalent to, line 20 refers to this man being the leader of the Executive Committee, and not of the Assembly. This is quite clear. I am now stating it from the Government Bench, and I hope that the noble Lord will believe me. Similar Amendments to this were debated at the Commons Committee stage—unlike some Amendments we have discussed which were not fully debated—and defeated on a Division. The title "chief executive" was opposed on the grounds that it would lead to confusion with senior local government officials, as has been suggested tonight.

The nomenclature was one of the issues considered collectively by Ministers after the defeat of the Scotland and Wales Bill. They decided to rename the Scottish chief executive the First Secretary, but agreed that no change should be made to the Welsh titles, which were considered to be the most suitable of the various possibilities and particularly apt to the Welsh Assembly's executive role.

I have explained why in our view the leaders and chairmen of such Committees are both necessary, but this does not mean that I accept that "Leader of the Assembly" would be a preferable or even acceptable title. I am not really clear what the noble Lord's intention is in proposing this alternative title, except perhaps the feeling that the chief executive in local authority is paid and in this case would not be paid. This is the only significance I can find.

Baroness ELLES

I should have thought that there was considerable difference between not only somebody who is paid and somebody who is not paid—which in fact is not correct because presumably a Member of the Assembly will be paid—but one is elected and one is a paid employee. These are the differences.

Lord DONALDSON of KINGSBRIDGE

I stated it wrongly—as between being elected and paid, or just paid.

Viscount AMORY

May I ask the noble Lord whether the title suggested by my noble friend, "executive chairman" was among those considered but rejected?

Lord DONALDSON of KINGSBRIDGE

I cannot answer that question. I feel that the title proposed is reasonable and acceptable. This is not a thing on which one wants to quarrel. It is a question of words, and if noble Lords would be happier if I took it away and brought back the same answer on Report, I am prepared to do so. Seriously, we will look at this. I do not think that there will be a good reason for changing it, but I am prepared to look at it.

Lord ELTON

I must make my position clear before my noble friend does the same. That is a generous gesture. I am not sure that I like the way it was phrased—bringing back the same answer—but I am sure that the noble Lord did not intend to be either pessimistic or ungracious. The present title is quite unsatisfactory. It ought to go. It is not a matter of Party rancour. I should be happy to see everybody across the Floor voting as they felt.

We cannot be satisfied with what we have. It may well be that "executive chairman" is the right title to have. If we have to put something in the Bill perhaps that is what it should be. Maybe, as I said before, we should follow the principle which the noble Lord and his friends put forward with such force, vigour, and determination at an earlier stage and allow the Welsh to choose the name themselves. That is what I should like to do. But these are alternatives which the noble Lord opposite will be considering if my noble friend consents to withdraw his Amendment.

Lord DONALDSON of KINGSBRIDGE

If you are going to leave it to the Welsh you would have to have something to leave to them, and perhaps what is in the Bill now might be considered that.

Lord ELTON

That is not satisfactory because what is left in the Bill now tells them that they shall call this person by a name—that he shall be known as the chief executive—and that is not satisfactory; they should be allowed to call him Pendragon or the executive chairman, as they wish.

Lord SWANSEA

This has been an interesting discussion and probably it is a matter about which we should have second thoughts I have not changed my view and I still feel that in this case the title chief executive is inappropriate. When dealing with an earlier part of the Bill and with the term "presiding officer" your Lordships decided that the proper title for that office should be left to the Assembly, and perhaps the same should apply in this case. I hope that between now and Report the Minister will give the matter his consideration, and we will do likewise. Perhaps I made a mistake in giving the word "Leader" a capital L because that implies a title being conferred in the Bill which might be better left to the Assembly to decide. We can think about that again and, in the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67C, 67D and 67E not moved.]

Clause 18, as amended, agreed to.

9.37 p.m.

Lord ELTON moved Amendment No. 67F:

After Clause 18, insert the following new clause: (" . Any committee appointed by the Assembly shall have such power to send for persons and papers as the Assembly may decide when appointing each Committee, but such power shall not be exercised in respect of Members of either House of Parliament or in respect of papers which relate to the defence of the Realm.").

The noble Lord said: Elsewhere in the Bill there is provision for the Assembly to set up inquiries, but I do not feel that that power necessarily brings to them the information or provides the means by which they can conduct their business if they are to acquire the knowledge they need of all the affairs in Wales. My noble friends and I can find no provision in the Bill for their making inquiries other than by this means, unless it is hidden in Schedule 2, and that was not apparent to me when I was going through the educational provisions, which I did with some care.

It therefore seemed sensible to table an Amendment so that the Minister could set out the means by which they could acquire the sort of information which for example, a committee of another place could acquire as an essential tool in formulating their policy. It did not seem to us proper to put very strait limits on that, provided that the powers did not exceed what were already the limits set out in the Bill. It also seemed to us proper that the power to send for persons and papers should not include the power to send for persons and papers of either House of Parliament.

Obviously this is at this stage a probing Amendment, so the Minister need not fear that I am about to call his noble friends back from dinner in order to decide the Question. However, we should be in a better position to know how the Assembly will work vis-à-vis the people and institutions it will be governing, and I hope we shall be given that information as part of the noble Lord's reaction to what we have set out in this Amendment.

Lord DONALDSON of KINGSBRIDGE

Two similar Amendments were debated by your Lordships during the Committee stage of the Scotland Bill. This Amendment embraces the main points of both. Lord Drumalbyn accepted in that debate that the powers to call persons, that the Amendments sought to confer, might have been defined too widely, but argued that some such powers were necessary because it would otherwise be difficult to enforce a call by the Assembly for people and papers. The Amendment was withdrawn and was not put down again for Report stage. The present Amendment seeks to enable the Welsh Assembly to decide when setting up each committee whether to equip it with powers, similar to those of Parliamentary committees, to call for any persons and papers, with certain specified exceptions. The Government take the view that, even with the exceptions set out in the Amendment—which exceptions we agree with—it is going too far to give Assembly committees such wide-ranging powers.

Here, again, we have an Amendment which is in the opposite direction from usual. The noble Lord is trying to give more power to the Assembly, and we are saying that he is going a little too far. Parliament's powers to call for persons and papers derive from the kind of inherent privilege that the Assembly will not have, and is not intended to have. Therefore, to make an Amendment of this kind would introduce for the Assembly a level of authority that is appropriate, outside the courts of the land, or for law enforcement purposes, only to a sovereign Parliament. However, as it stands the Bill already recognises that the Assembly may, in certain limited circumstances, need to require information, and so it confers on the Assembly certain powers to enable witnesses to be summoned and to produce documents. These powers derive from Clause 25(2) of the Bill, which incorporates by reference the provisions of Section 250(2) to (5) of the Local Government Act 1972. I believe that these were the details for which the noble Lord was asking. The Assembly will therefore be able to obtain the information it needs where it causes an inquiry to be held into any matter relevant to the performance of its functions. The Assembly could establish one of its committees as a committee of inquiry and confer on it these powers.

It may be helpful if I set out the difference between the provisions of the Bill as it stands, and the proposed new clause. First, the Bill now enables the Assembly to require the attendance of witnesses and the production of documents only in the context of an inquiry into a matter relevant to the performance of any of its functions. The new clause would confer a general power, which is unacceptable because it would confer the kind of privilege appropriate only to a sovereign body.

Secondly, the Bill provides that the Assembly must take a conscious decision to confer these powers in a particular instance, and not confer them on a permanent basis. The Assembly must have a particular object in mind. Thirdly, even where the inquiry is to be conducted by a committee of the Assembly, the powers being exercised would be the well-precedented powers now exercised by those appointed by Ministers to hold inquiries. These powers deal with such matters as sanctions and do not leave loose ends, as the new clause does.

The Government thus believe that the Bill as it stands strikes the right balance. The Assembly should not be given the far-reaching powers appropriate only to a sovereign Parliament, but, equally, it should have available to it powers comparable to those now enjoyed by Ministers in the execution of their duties. Of course it is desirable that the Assembly should be able to give its committees adequate powers to require its own staff, and Members and officials of bodies operating directly and exclusively under the Assembly's control, to appear before, and provide information for, Assembly committees. The Assembly can already do this under its inherent powers, and there is no need to make specific provision on this point.

Even though it is refreshing to find the official Opposition for once seeking to extend the powers of the Assembly beyond those proposed by the Government, it would, in the Government's view, be wrong to extend them beyond the Assembly's inherent powers and those conferred by Clause 25. I hope that this rather long explanation will satisfy the noble Lord, and I think that I have dealt with the specific questions he asked as to where the powers are derived from.

Baroness ELLES

This is the second time that the noble Lord has been pleased with the Opposition, so it is not for once, it is for twice. We are already one notch up, therefore, in the course of the discussions during the Committee stage of this Bill. However, I take issue with the noble Lord about the rights of an Assembly committee to ask people to come before it and to discuss with it matters which are of common interest. I do not know on what authority he says that this is a function of only a sovereign Parliament, or with what other bodies he is comparing the Welsh Assembly. Of course, naturally enough, I revert back to my experience in the European Parliament, and I apologise to noble Lords if they are getting rather sick of hearing of the European Parliament. Nevertheless, although it is possibly not entirely a body comparable to the Welsh Assembly, it is a body of elected persons throughout Europe who have not got legislative powers; so there are certain similarities in the functions, if not in the powers, of these two bodies. They are also bodies set up recently. They are both new bodies, in a completely new set of circumstances.

It would have been unthinkable, I believe, for the committees of the European Parliament not to have these powers to enable them to carry out their duties effectively. Of course, I am referring to their duties under the Treaty: not exceeding their powers in any way, as indeed we were not imagining the Welsh Assembly committees would be exceeding their powers in any way, but merely trying more effectively to fulfil their functions. It appears to me, from my experience in the European Parliament, that it would be very difficult for a committee to fulfil its functions and discuss, for instance, matters of employment without having groups of trade unionists coming into the committee to give their views on certain employment policies or decisions affecting employment. Why should such trade unionists, for instance, not be allowed or enabled to come and discuss with a Welsh Assembly committee on employment? It seems to me a very logical and simple process which is in no way exceeding the powers of the Assembly.

I do not think my noble friend is intending to press this Amendment, but I do think that this is something beyond Party which the Government should look at again, and they should not impose any binding restrictions on the Assembly as to who they should or who they should not receive. This is quite different from local inquiries under ministerial powers which have been devolved: this relates to the ordinary procedural activities of the Assembly, in an attempt to assist committees to fulfil their functions in a normal democratic manner. As we all know, you cannot now enable democracy to progress or to have any effective future if you do not have communication and discussion. It seems to me, therefore, that the right thing to do would be to consider, at any rate, that these committees should be allowed, under certain specific conditions, to have people come to their committee meetings and discuss matters of interest to the Assembly.

Lord DONALDSON of KINGSBRIDGE

Perhaps I may answer that first. I think there is a modicum of misunderstanding here. The noble Baroness spoke of people being allowed or enabled to talk to them. Of course they are allowed and enabled to talk to them. The power which is not conferred by this Bill is the power which the courts have and which Parliamentary Committees have to insist on an appearance. In the normal course of events, people would be asked to give evidence and would come and do so, but if they did not want to then they could not be made to come.

Lord HARVINGTON

I wonder whether I could ask a question of the noble Lord, Lord Elton, or the noble Baroness—and I apologise if I have missed something here which I ought to know. Does the writ of the Assembly as regards papers and persons extend beyond the boundaries of Wales? For instance, if somebody goes over into Monmouthshire and there is an argument as to whether that is Wales of England, or something of that kind, or goes to Scotland, can he be subpoenaed from there, and can an officer of the court go for him, get him and bring him back—that is, an officer from whatever happens to be the Assembly's equivalent of the office of the Sergeant at Arms? I was wondering whether that point is covered by the Amendment.

Lord DONALDSON of KINGSBRIDGE

Again, I think we are on a wrong issue here. The rule of law and crime is not devolved, so the writ of the Assembly does not run at all in the sense in which the noble Lord was speaking. Obviously, if somebody commits a crime and escapes to Scotland, under the present rules he could be brought back, just as he could be if it were within Wales. It would not be within the Assembly's business.

Lord ELTON

The noble Lord has been most helpful, and has really brought out the question of whether or not a person can be subpoenaed to appear before a committee of the Assembly. Of course, we were trailing our coat for this, and for a good deal more which has pounced out of the undergrowth upon it, if I may so put it, which we shall read with interest. The question of how the Assembly arrives at its decision is important. Obviously, the processes which the noble Lord has described will be crucial to it. I am grateful to him for the information he has given about the way the Government are thinking. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Exercise of certain powers of subordinate legislation]:

9.50 p.m.

Baroness ELLES moved Amendment No. 67A: Page 9, line 7, leave out subsection (3).

The noble Baroness said: This Amendment draws attention to the powers of the Assembly to charge a committee with the exercise of its powers and, as has already been seen in Clause 17(2)(b), it can, in fact, charge the leader of that Committee with certain powers; so that certain executive decisions and measures can be taken by one person alone. In this particular clause, there is a limitation on this power of the Assembly to devolve its executive powers. By subsection (2) we see that the Assembly as a whole has to exercise its powers in certain specific circumstances. There are four examples, decisions, set out in paragraphs (a), (b), (c), (d) of subsection (2) which cannot be devolved to a committee by the Assembly.

This is perfectly understandable. Why I put down this Amendment relating to the deletion of subsection (3) is to ask the Government how they think this subsection will work. It uses the words: "in … cases of urgency". These cases of urgency are, apparently, to be decided by the standing orders of the Assembly. Obviously, the question of urgency will depend on how often the Assembly is intended to sit during the year. Is it intended, for instance, that the Assembly will sit in plenary session every month or every week? Clearly, matters of urgency may arise more often outside meetings of two or three occasions a year than outside monthly or twice-monthly meetings.

I think that this is something that we should want to know. We should also want to know about the way the Assembly itself will decide when a case of urgency arises. Who is to decide when that uregncy arises? Is it to be left to the Chief Executive, so-called (or not so-called, as we have been discussing earlier), or must it be decided by the Assembly as a whole in plenary session; and must there be a majority vote to decide whether there is a case of urgency which justifies devolution of a power to be exercised normally by the Assembly to be exercised by a committee?

The other point which springs to mind is the question of the exercise by a committee of these powers. Is it to be the same committee which is responsible for the particular functions which are involved in that particular case of urgency? For instance, is the committee which is concerned with planning to have power to make very obviously important decisions? —because this clause deals with the important decisions which are to be made by the Assembly. Is the same committee, who possibly have a political interest in the decision to be taken, to be allowed to assert these powers?

These are all questions which arise out of the subsection. I think that probably it would have been better if this subsection was not in the Bill because it leaves the matter, I think, less clear than if it were left to the Assembly to work out in its own way how it is going to deal with these matters. As worded at the moment, it raises a whole lot of doubts as to how this will work in practice. Who is to decide what is urgency? Who is to decide which committee is to exert its power when a case of urgency arises?

Many of these matters, understandably, will be contained in the standing orders of the Assembly. Could the noble and learned Lord say whether some draft standing orders have been prepared, or are being prepared, in order to assist the Assembly in its initial proceedings? If that is so, how in those provisional standing orders, if they exist, is this subsection dealt with? I beg to move.

9.57 p.m.

The LORD CHANCELLOR

The noble Baroness has asked me a number of questions relating to the provision in Clause 20 that in cases of urgency a committee may be charged with the exercise of a power to which subsection (2) applies by virtue of paragraphs (a) or (b) of the subsection. The matter which ought to be emphasised is that these powers are available only in cases of urgency, as the noble Baroness has said, as defined in standing orders. It would be very optimistic and confident if we had already produced draft standing orders. The Bill has a little way to go; not very long, I am sure—owing to the speed with which the Wales Bill is going through your Lordships' House, it will be any day now—but I cannot promise that we have produced the draft standing orders yet, but they will be produced in the fullness of time. The need for the use of these powers in a state of urgency will be determined by the committees themselves. They will decide when the situation arises calling for the use of these powers.

Your Lordships will have noted that the provision does not extend, as the noble Baroness has indicated, to all the powers which are listed in subsection (2) of the clause but only to the first two—that is, those subject to any form of Affirmative or Negative Resolution procedure. The provision does not extend to provisional orders or to orders subject to special Parliamentary procedure (which would not normally contain circumstances of urgency). Thirdly, the power must be delegated to a committee and cannot be delegated further to the leader of the committee or to a sub-committee. So it is pretty well circumscribed in the way that the clause indicates.

Those noble Lords who have had ministerial experience will know that suddenly things can crop up which make the creation of a statutory instrument necessary in a hurry. Many have had experience of that in ministerial days, when some external event shows the need to amend regulations. This power is necessary and we should be guilty of lack of foresight if we did not provide for it.

The situation will arise only in cases of urgency. Those cases will be determined by the relevant committees themselves. It would be intolerable if it was necessary to reconvene the whole Assembly—which may be in recess—to enable this power to arise. Accordingly, within the restrictions that are imposed by the clause I submit that this is a necessary power to give to the Assembly.

Baroness ELLES

I am grateful to the noble and learned Lord for that explanation. It does not cover completely all the questions that I asked and I do not expect an answer to the questions I have put to him, particularly as I did not give notice. I should like an answer at some stage as to how a committee may be charged with the exercise of this power. Is it to be done by the senior official who is working for the Welsh Assembly? Is he to say to a committee: "Look, something urgent has cropped up; you must deal with this because I cannot send out a mandate, or whatever it is, to the Welsh Assembly to re-convene in order to discuss some urgent matter?" Must it be at the behest of the senior Member of the Welsh Assembly—presumably either the presiding officer or the chief executive, using the terms that we have been dealing with so far? I think the wording of this particular subsection is not clear, and I am still not clear in my own mind as to how this decision is to be taken or who has the authority to take it. I will, if I may, leave it with the noble and learned Lord for now, and if he wishes to—

The LORD CHANCELLOR

I should like to say that these are matters of detail and they will be provided for in the standing orders of the Assembly. They are matters of detail: I agree they are important. They have rot been worked out yet but there will be provision for them in the Standing Orders of the Assembly, and necessarily so.

Baroness ELLES

I am grateful to the noble and learned Lord for what he has said, and I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 [Scrutiny of subordinate legislation]:

10.1 p.m.

Lord CULLEN of ASHBOURNE moved Amendment No. 68: Page 9, line 31, after ("other") insert ("investigative").

The noble Lord said: I beg leave to move Amendment No. 68, which concerns the scrutiny of subordinate legislation. In subsection (2) it says: The Assembly may confer on the committee appointed under this section such other functions as the Assembly may determine". In the Amendment we propose the insertion of the word, "investigative" after the word "other", in order to keep the entire clause on the same lines. It is very likely that the noble and learned Lord will say that was always the intention and that investigative or scrutinising functions were intended. I beg to move.

The LORD CHANCELLOR

The intention is to ensure that any additional functions the Assembly may give to the committee scrutinising subordinate legislation shall be investigative—I am not sure that I know what "investigative" means in this context. Clause 21 certainly sets out the basic framework within which the Assembly is to scrutinise its subordinate legislation. It must appoint a special committee to scrutinise instruments of a general character which are to be made by the Assembly, and the role of the committee will be somewhat similar to that of the Joint Committee on Statutory Instruments in our own Parliament.

Subsection (2) provides that the scrutiny committee may also carry out such other functions as the Assembly shall determine and it would enable the Assembly to ask the committee to scrutinise, for example, instruments made by the Registrar-General or the Forestry Commissioners and falling within the Assembly's sphere of action.

We think it would be desirable to give the scrutiny committee other roles as well and we see no good reason for restricting the committee to scrutiny. What is "investigative" is a little uncertain on the margin, as I am sure the noble Lord will admit; and I think it would create confusion if the word "investagative" were introduced. We do not think the Amendment will be helpful. We think it will be confusing and unnecessarily restrictive. Accordingly, I hope that what is provided for, for this important committee to scrutinise subordinate legislation, is, as it stands, about right. I cannot go further than that.

Lord ELTON

I am much obliged to the noble and learned Lord, and I am also obliged to my noble friend. I should have been here a moment or two earlier, but there was a Division in the Commons and the information on the teleprompter, if that is what it is called, was obscured, so I did not know that we had got so far.

The noble and learned Lord said two things which seemed to me to be in contradiction. The earlier part of his answer led me to suppose that the functions of this committee were restricted to the functions implicit in Clause 21(1): that they were to scrutinise. The noble and learned Lord does not know what "investigative" means, but he expects me to know what "scrutinise" means. So be it. He then swept aside an Amendment, which we had put down as a probing Amendment to elicit what were those other functions—and all that he said led me to suppose that they were all functions of scrutiny—by saying that he thought that to limit it to scrutiny would be too restrictive.

So that my question remains unanswered. What are the other functions that this committee is to discharge, if they are not in the nature of scrutinising? The clause, with subsection (2) as it stands, appears to allow the Assembly to permit the committee to do almost anything, and to turn itself into a miniature finance and general purposes committee. I am sure that that is not the intention. I therefore wonder what is the intention, and we have put down the Amendment in order to elicit from Her Majesty's Government what is behind the drafting of subsection (2). I regret that I am still in the dark as to what that may be.

The LORD CHANCELLOR

What I think is intended is to give to this committee a role of scrutiny, in the field of subordinate legislation. But there may be other functions which the Assembly desires to impose upon this scrutiny committee. They will obviously be matters in the same field, but it is not proposed to restrict it to the matters set out in Clause 2(1). It is intended to give the power to investigate matters, or perhaps to inquire into matters which may be referred to it, over and above the limited scrutiny of subordinate legislation, which the Assembly may desire to confer upon the committee.

I think that it gives an opportunity to the Assembly to use the scrutiny committee for such other functions by way of inquiry—I shall not use the word "investigative", because I have criticised the use of that word—as the Assembly may decide is convenient and suitable. It merely makes available to the Assembly this appointed committee, to which it may be convenient to give powers to conduct inquiries, or whatever it is that the Assembly may commit to it. I do not think that I can be more specific than that. It seems to make sense to me, but perhaps not to the noble Lord.

Lord ELTON

There is always that danger. Let us narrow the field. Would the noble and learned Lord be satisfied with an Amendment which said that—and I am taking his words— The Assembly may confer on the committee appointed under this section such other functions by way of inquiry"— which is one phrase we used— as the Assembly may determine"? Or, The Assembly may confer on the committee appointed under this section such other functions in the nature of scrutiny as the Assembly may determine"? The noble and learned Lord has told me the intentions of the Government. I do not think he has told me the effect of the clause. The effect of the clause would still seem to me to be limited not by what is set out in subsection (1), but by the permissive powers set out in subsection (2). If this is the case, it must be wrongly drafted. I do not want to make a meal of this, but we ought to put it right. I should like the reaction of the noble and learned Lord to the sense of the two alternatives, "by way of inquiry" or "in the nature of scrutiny", which I do not suggest are a final draft, because this will at least make clear his intentions and we can see the effect of the Bill.

The LORD CHANCELLOR

I am willing to look at this point; perhaps it needs greater particularity. I thought that it was all right as it is, but if the noble Lord is worried that it provides too wide a range of possible activity for the scrutiny committee, I am certainly willing to look at it. If, therefore, the noble Lord will not press this Amendment, perhaps we can return to it.

Lord ELTON

I am much obliged for what the noble and learned Lord has said. Of course I shall be guided in the long run by the superior wisdom of the Lord Chancellor of England over my lay opinions. I feel, as I think many of us do, that when we are drafting statutes we want to say what we want them to mean so that they mean what we have made them say. I am sure that the noble and learned Lord will achieve this intention during the interim period between now and Report. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 [Party balance in committees]:

Lord ELTON moved Amendment No. 69: Page 9, line 36, after ("17") insert ("18,").

The noble Lord said: This is consequential upon Amendment No. 63 which we carried. I beg to move.

On Question, Amendment agreed to.

10.12 p.m.

Lord ELTON moved Amendment No. 69K: Page 9, line 38, after ("parties") insert ("and the representation of the various parts of Wales").

The noble Lord said: We come back to the field in which the noble Lord, Lord Donaldson of Kingsbridge, was so interested, the field of checks and balances. The Amendment provides in line 38 that I the balance shall be not only between the Parties but also between the regions or various parts of Wales. I think it was generally accepted at Second Reading that there are considerable distinctions between the North and the South of Wales: that, as regards its population, the North is, generally speaking, rural and agricultural while the South is urban and industrial and that the interests of the two, therefore, may often conflict.

Since the Government have been good enough to say that minority Parties should be represented in the committees and since those minority Parties may be drawn from both the North and the South, it seems that consistency as to the fairness of their intention requires that the representation in the committees should include balance as to geographical region—and, therefore, economic interest—as well as balance as to political Parties and, therefore, affiliation. I suppose that on occasion it may lead to some rather difficult juggling of membership, but if we are to achieve what the noble Lords opposite are patently trying to achieve and what we are trying to convince them that we also are trying to achieve—namely, a fairly constructive and efficient Assembly for the people to vote on at the referendum—it seems to me that this is a necessary provision. The point is not of earthshaking constitutional significance, and I should have thought that it is one to which the Government might even be able to accede. I beg to move.

The LORD CHANCELLOR

I think that I understand the underlying intention of these Amendments, but they do not make very clear to me whether Party balance or geographical balance is to take precedence if in a particular case the two considerations prove to be incompatible. I am not quite sure what is meant by "the various parts of Wales". A broad distinction is drawn between North Wales and South Wales. Pembrokeshire is supposed to have its own special character.

My own county, which used to be called Carmarthenshire, is now lost under the rubric of the previous administration of Dyfed, along with a number of other counties which are unrecognisable in the new regime that was created. It is not an easy problem. Clearly it is reasonable to expect that the Assembly will wish to take various factors into account in deciding the membership of the committees. As the noble Lord pointed out, in Clause 22 the minimum requirements for the political balance of the subject committees, the scrutiny committee and the accounts committee are provided for. That will ensure that minority interests are represented on these committees. These provisions will prevent the majority Party, if there is to be one, from dominating any particular committee to a greater extent than is justified by the representation in the Assembly.

I have little doubt that the Parties in the Assembly will take care to see, so far as is practicable, that there is a proper geographical spread. I do not think that there will be any empire building in Glamorganshire to see that Caernarvonshire does not get a fair run in representation. I am sure, knowing the gentlemen of Caernarvonshire and Pembrokeshire, that they will see to it that they get a fair part in the representation.

I respectfully submit that to introduce a requirement as to the geographical balance—even as vague a one as is provided in the noble Lord's Amendment—could present very serious practical problems. A situation could arise where, if there is to be a need to reflect both Party balance and geographical areas, the committees would either be so large and unwieldy as to be unacceptable, or it would be impossible to find enough members on them to comply with the necessary statutory requirements. With respect, I think that this is surely a matter that can be left to the discretion of the Members of the Assembly.

At last Wales will have a national Assembly. One of its achievements, I hope, will be to limit the traditional rivalry (to put it as modestly as I can) between North and South Wales. It is a distinction created largely, I am afraid, as a result of the lack of communications between North and South Wales. That, in turn, has created a difference in accent. Reasonably fluent as I am in the Welsh language, I confess that in part of Caernarvonshire I am a little lost by my fellow countrymen's speech—but that happens only occasionally. However, I think we must, here again, look to the good sense of the Assembly, which will operate as a national Assembly, to see that the North is not frozen out by the strong men of South Wales, where the large majority of the people of Wales live.

Viscount AMORY

If the noble and learned Lord the Lord Chancellor will forgive me, I was not terribly impressed with his argument about the difficulty of laying on the Assembly the requirement of taking account of the Parties and the geographical spread. I think that the noble and learned Lord asked which of the two should take precedence. I should have thought that there were many examples where two factors to be considered were laid on the authorities, without laying down which of the two should receive preference. I should have thought that the tremendous difference in population between one part of Wales and another perhaps made this desirable. Whether or not, on balance, it is desirable, I should not have thought it was impossibly difficult to do, just by virtue of laying two responsibilities on the authority, both of which had to receive consideration.

The LORD CHANCELLOR

I think the really important matter is already provided for in Clause 22, that the Assembly shall secure that the balance of parties in the Assembly is, so far as practicable, reflected in the membership of the committee". That is the crucially important thing. I do not know how the Party spread will operate geographically and I had better not forecast what the future political shape of the Assembly will be, but I think to make statutory a provision for a geographical representation being an essential element is not really necessary and in the case of the small committee it might be very difficult to achieve it. I expect that it will present no difficulties in practice because there will be clear representation from all parts of Wales in the Assembly itself. They will be represented there on the basis of the electoral system, and it will act responsibly as a national Assembly and I do not believe that we need worry unduly about this.

Lord ELTON

So far as I am concerned the principal surprise in the debate has been that, following the loud cries of "Hear, hear!"from the Liberal Benches about the differences in North and South Wales, and remembering that the Amendment on proportional representation contains within it a definition of the geographical regions to which we allude and that was warmly supported from the Liberal Benches, there has been no intervention in support of this particular principle, even as a matter of theory. I think the noble and learned Lord should not underestimate the anxiety, which has been extremely clearly put before members of my Party, and I do not doubt also of his Party, that exists in the rural and agricultural North about the prospects of domination in the political and economic sense by the urban and industrial South. The argument that he adduced for saying this was superfluous almost made one suppose that one could expect all the members of minority Parties to come from one half of Wales and all the others from the other half.

However, I think we have investigated this area sufficiently to get the temperature of the water in the Government's thinking (if that rather unhappy mixed metaphor will be forgiven) and I do not propose to pursue it further than I already have, at least until I have read what the noble and learned Lord has said. I think he might have been a little more generous in his approach. However, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69L not moved.]

Clause 22, as amended, agreed to.

Clause 23 [Defamation]:

10.22 p.m.

Lord MONSON moved Amendment No. 69B: Page 9, line 42, after ("statement") insert ("relating to the functions referred to in sections 9 to 13 above").

The noble Lord said: It may be to the convenience of the Committee if I speak at the same time to Amendment No. 69C. Clause 23, which confers absolute privilege against defamation proceedings upon the Welsh Assembly, is almost identical to a similar clause in the Scotland Bill. I say "almost" because, curiously enough, where the Scotland Bill puts semicolons the Wales Bill has commas. There may be some obscure mystical Celtic significance in that which eludes a mere Saxon like myself. Perhaps the noble and learned Lord can explain this when he replies. There is also another small alteration of a seemingly grammatical nature in line 2 of subsection (2) which is unlikely to have any significance. One really wonders whether these minor distractions have been slipped into the clause as red herrings.

The important thing that needs explaining by the Government is why on earth absolute privilege comes into this Bill at all. This is because all elected public bodies, such as the Welsh Assembly will be, are automatically protected by the doctrine of qualified privilege. This automatically protects Members who—and I quote from Halsbury— are acting in good faith and without any indirect or improper motives make statements about other people which are in fact untrue and defamatory". In other words, they are completely protected without the need for a clause such as this, unless they speak maliciously. Noble Lords without legal training may not have realised this; I myself certainly did not realise it until the other day. What this means is that all Assemblies of this nature, with the exception of Parliament itself and the courts, function perfectly well despite being protected only by qualified privilege. It does not inhibit their smooth and efficient operation in any way. After all, the Greater London Council—responsible for over two and a half times the number of people the Welsh Assembly will he responsible for—does not feel the need for its members to be able to speak maliciously in order to run its affairs. The same applies to the West Midlands and Greater Manchester County Councils, both of which are responsible for more people than the prospective Welsh Assembly will be responsible for.

When the virtually identical clause in the Scotland Bill was being criticised at Report stage, the noble and learned Lord, Lord McCluskey, defended it, in reply to a question by the noble Lord, Lord Campbell of Croy, by maintaining that the Government's view was that absolute privilege was essential for the effective running of a legislative body. But whatever the merits of that argument—and many of us were not convinced by it—it cannot possibly apply here. The Welsh Assembly is not a comparable body; it has no power to legislate.

One cannot avoid a growing suspicion, particularly bearing in mind the obviously ha sty drafting of both the Scotland Bill and the Wales Bill, that the inclusion of Clause 23 in this Bill was entirely accidental. A similar clause featured in the Scotland Bill, so someone assumed, so I would guess, without thinking the matter through, that it automatically followed that a parallel clause should appear in this Bill. The fact that it was at one time proposed that the Welsh Assembly should have legislative powers lends credence to this theory.

As to the drafting of this pair of Amendments, they would effectively confine the cloak of absolute privilege to discussion of what we now tend to think of, following the twenty odd days spent on the Scotland Bill, as devolved matters, but which are, of course, properly although less euphoniously described as transferred functions as far as this Bill is concerned. When a similar Amendment was moved to the Scotland Bill, the Government's objections concentrated particularly on the difficulties of defining precisely where the border line is drawn between devolved and non-devolved matters. As we are only concerned with malice here—because, let me reiterate, non-malicious comment is totally protected—I hardly think this to be a valid objection. All that members have to do when in any doubt is simply to restrain the malicious remark which may be on the tip of their tongue, not exactly a very onerous requirement. Most of us find this quite easy in our daily lives, and although comment in your Lordships' House is absolutely privileged I think very few noble Lords, if ever, take advantage of this. As the Wales Bill stands, members of the Welsh Assembly may malicously libel or slander with complete impunity not only people in Clwyd or Carmarthen but individuals in Caithness, Carstairs, Carlisle, Coleraine, Cambridge and Cornwall as well. I suggest that this is quite unacceptable to the Committee, and indeed to the people of the United Kingdom as a whole.

If the demarcation between transferred functions and non-transferred functions is too difficult to define, I suggest the best course is to delete Clause 23 altogether. Perhaps it would be wise to delete the whole clause in any case. It is totally illogical to give such powers to a non-legislative Assembly. By indirectly giving the Assembly the status and the prestige of a sovereign Parliament by means of clauses such as this, you will pave the way sooner or later for separation and the ultimate break-up of the United Kingdom.

Finally, by a significant coincidence an Early Day Motion took place in the House of Commons only two days ago, on Monday 19th, which can be found at columns 29 and 30 of the Official Report for that day. Speaking on the Motion, Mr. Burden, the Conservative Member for Gillingham, voiced the strong opinion that it was regrettable that there was apparently a growing tendency for some Members under the rules of privilege to impugn the honour and integrity of others outside. He also urged Members on all sides of the House to be careful about using their privilege, since if they made similar statements outside the House they would be liable to face considerable legal implications. If any Members of the Committee have any doubts about our Amendments, I think these timely words will dispel them. This is a non-Party matter. Unfortunately, the other noble Lords who are supporting me could not be here at this hour, but this is a matter which cuts across Parties, and indeed cuts across one's attitude to devolution. It is perfectly possible to be in favour of devolution and still have doubts about this clause. I hope noble Lords in all parts of the Committee will support the Amendments. I beg to move.

The LORD CHANCELLOR

The picture that the noble Lord has created of the Members of the Welsh Assembly as a pack of potentially malicious slanderers, I am bound to say surprises me a little, but these possibilities do occur to imaginative minds. Clause 23 gives absolute privilege in the law of defamation to any statement made in proceedings of the Assembly and to any document published under the authority of the Assembly. The noble Lord's Amendment would limit that absolute privilege to statements relating to the devolved functions which are referred to in the preceding clauses we have been discussing.

I quite understand the anxiety of the noble Lord that there are certain dangers in giving absolute privilege to any body or institution and there is the risk of abuse, but the principle of the matter is that the status of the Welsh Assembly is the status of a National Assembly of Wales. It really depends what status your Lordships give to it in order to decide what protection it should have for absolute privilege for its Members, who will be elected by the people of Wales as a whole, in their deliberations in the Assembly itself. It is quite true that the Welsh Assembly will not have legislative powers, but it will have executive powers which v, ill he exercisable on a national scale. It will have important powers in regard to subordinate instruments, and in the view of the Government they ought to attract absolute privilege. This is what Clause 23 of the Bill does.

I think it is desirable to see what the Assembly will actually be discussing. I do not think it is realistic to hive off the sphere of its considerations within a sealed-off area labeled "devolved matters.' What goes on outside those devolved matters will obviously be a matter of concern and for discussion by the Assembly. Perhaps I can give an example of the kind of situation I have in mind. The Government, for instance, may well be proposing legislation affecting Wales and they could well welcome the views of the Welsh Assembly upon any forthcoming legislation of that kind. I ask the noble Lord whether it is really to be suggested that that kind of discussion of this elective Assembly for Wales should only enjoy the umbrella of qualified privilege. I submit that the protection that ought to be given, and what it is practical to give—because I do not think it would be practicable to restrict the sphere within which absolute privilege could be given to one part of discussion while in another part the protection would go—is provided for here; and this is needed by the circumstances of the case.

The real answer to the risk of abuse by a Member of Parliament or a Member of the Assembly is public opinion. Through the decades those of us who have been in the Commons for years and those who have enjoyed the privileges of your Lordships' House will know that, whereas we have these powers of saying whatever we like, we exercise responsibility, in part because the public outside is listening. As far as we are concerned they are listening more than ever before, which I think is a desirable thing, especially to those golden voices I hear with such regularity at breakfast time each morning; some are more golden than others; some perhaps silver, and some perhaps not even silver, but good they sound. Public opinion controls and determines the exercise of these powers. I think that we can rely upon the people who will compose the Welsh Assembly—who will not, I think, by character be malicious slanderers—to exercise their powers responsibly.

10.35 p.m.

Baroness ELLES

I should like to intervene on this Amendment because, having listened to the noble and learned Lord, I find the arguments in favour of keeping the clause becoming fewer and fewer. Moreover—and I mean no disrespect to him whatever—by the time he had finished I thought that the Bill would be much better without the clause. He said that in the end it is public opinion that decides on this matter. I point out that first, members of the public will not have been able to discuss this clause before it becomes law and, secondly, it will be individual members of the public who will suffer if absolute privilege is granted to the Welsh Assembly in the way envisaged by this clause.

It seems to me rather extraordinary that we have been listening to so many arguments as regards the Scotland Bill telling us that it is essential to have absolute privilege for the procedures of the Scottish Assembly because it will be a legislative body. That was the only final argument that could be adduced by the Government Front Bench when this matter was raised. It seemed to me, at least, that it was the strongest argument that they could produce. Yet, when we have been discussing the Welsh Assembly we have been told repeatedly that it will not be a legislative body. The noble Lord, Lord Harris of Greenwich, will remember that on the 6th June—which was only a few days ago—we were informed categorically that it will not be a legislative body, and we accept that it will not be a legislative body. So, I do not see how the Government can reconcile the views that, first, the Scottish Assembly must have absolute powers because it is a legislative body, and, secondly, that the Welsh Assembly must have absolute privilege although it is not a legislative body. The two arguments simply do not connect in any way that I can see, unless there is some third or fourth stage of chop logic which has escaped me.

There are other matters to be raised. After all, local authorities do not have absolute privilege, although I accept that the Welsh Assembly itself is a different animal from a local authority. Nevertheless, we have been told over and over again that it is not a sovereign Parliament. It seems to me that throughout our discussions it has been very convenient for the Front Bench opposite to use arguments of one kind when it suits it, and then to use totally different arguments as regards some other clause; but the arguments do not seem related to the fundamental issue which we are discussing.

As the noble and learned Lord rightly said, we do not often have cases of slander or defamation in our elected bodies. But the noble and learned Lord will certainly recall that only recently there were very grave breaches of privilege. I do not propose that we should even discuss them in this House, but they were raised quite recently in regard to an issue of defamation. It is not so difficult for these cases to arise in any elected body.

I do not know whether we shall, in fact, vote tonight or make a decision on Clause 23, but I ask the noble and learned Lord to give us a more convincing reason why he thinks that this clause should remain in the Bill. After all, absolute privilege is a very great privilege for any elected member of any body, because he has a total right to say anything he likes about any individual within the Chamber of the body to which he is elected. This is a very grave and serious privilege, and it can very seriously and gravely affect the rights of individuals.

This is not a light matter; this is not something where one can just say, "Because it is in the Bill, we must keep it", or where somebody else can say, "We do not like it, we must have it out". It affects the fundamental rights of the individual and, in this particular case, of the Welsh individual. I think that the Government should be able to give us very much more serious and profound reasons why the Welsh elected Member to the Welsh Assembly must have absolute privilege when he is discussing some individual and possibly causing considerable harm to that individual.

The noble and learned Lord the Lord Chancellor has drawn attention to broadcasting. The broadcasting of debates in itself can, in fact, cause more damage to an individual than if these matters were not broadcast. It may very well be that the name of an individual—possibly rightly or, which is worse, possibly wrongly—may be mentioned in connection with some debate. That individual may suffer grievous harm of some kind and serious detriment to his professional or private standing in society. As the noble and learned Lord has mentioned the fact that even these proceedings may be broadcast, I should very much regret if absolute privilege was to be given to this body in such a manner that we have not been convinced that it is essential for it to have it.

The LORD CHANCELLOR

The basis of the privileges of Parliament is freedom of speech. The two are linked together in the Bill of Rights.

Baroness ELLES

Will the noble and learned Lord allow me to intervene? Very often we talk of freedom of speech, but in all the universal declarations on human rights and other covenants and conventions there are always limitations and restrictions on the use of freedom. They involve considerable responsibility as regards the use of freedom of speech as well as consideration of the rights of others.

The LORD CHANCELLOR

If the noble Baroness had borne with patience what I was endeavouring to say, perhaps I could have satisfied her, although I anticipate that that would be a very difficult operation. However, freedom of speech has been embodied in our Constitution since, I think, 1688, and this is the basis of the privilege of Parliament whose Members enjoy absolute privilege. When the noble Baroness was expressing some concern about a recent debate in another place, I wondered whether she was regretting the existence of absolute privilege even for Parliament itself, but probably that was not intended.

The real question is what status we really want to give to this national Assembly. Is it to be treated on the level of a local authority, enjoying qualified privilege; or is its quality as a national Assembly, of Wales in one case and of Scotland in the other, deserving of special recognition and special status? Are the kinds of matter that it will discuss matters of such importance affecting the people that those speaking ought to be free to speak their minds? The threat of libel actions against ordinary folk—not rich Assemblymen or rich Members of Parliament—is a very serious threat. There is no legal aid to fight the cases and the ability of the ordinary Assemblymen or the ordinary Member to say what he thinks is right for the benefit of his constituent, which may be very gravely defamatory—perhaps that is not the right word—gravely objected to by great corporations or even powerful individuals, is a power which is very important to give to the Assemblyman and the Assembly Member.

As I said earlier, the restraints upon its exercise are a product of self-discipline of the Assembly, with the knowledge that the public are listening and watching. I was not suggesting that the public would be discussing tomorrow at breakfast-time in Llanelli the provision in this clause dealing with defamation. I was saying that in the future conduct of their affairs by Assemblymen, there will be watchful attention.

I am surprised to hear that the view emerged in regard to the equivalent provision in the Scotland Bill that it was granted to the Scottish Assembly only because the Scottish Assembly was a legislative body. I should be surprised to find that that had been stated by my noble and learned friend Lord McCluskey, or by me if I was discussing it. I cannot remember it. Certainly, in regard to Scotland, the executive powers are such that they, too, if that was the only ambit of their powers, need this protection.

I submit that the status of the Assembly calls for it. The kinds of matters they will be discussing call for it. We have rather gone away from the noble Lord's Amendment in the wider discussion which, surprisingly, we entered into, but I should have thought that what is proposed in the Bill is necessary and right in principle.

The Earl of SELKIRK

I hesitate to cross swords with the noble and learned Lord the Lord Chancellor again. I regret his using the word "status". This is nothing to do with status, either historically or elsewhere. The only reason one has absolute privilege is because it is in the national interest. It is in the national interest that we should be free to speak. It is not a question of status. I am afraid that that is in the Government's mind. It is within the dignity of a body that they should have the status of absolute privilege, and this is not a good basis.

The LORD CHANCELLOR

We have crossed swords on this before on the Scotland Bill. When I referred to the national status I was trying to distinguish between this being a national Assembly and not a local government authority. I was not asserting status itself as a word of significance.

The Earl of SELKIRK

I am delighted to hear the noble and learned Lord say that. Certainly the noble and learned Lord, Lord McCluskey—and I think the Lord Chancellor himself—on basing his need for absolute privilege in Scotland deeply emphasised the legislative status. I find myself in agreement with what my noble friend said; that is, that there was a sharp emphasis on this point. I think there is a case to answer for an Assembly that is not legislative. It is a narrow case because it is legislative; but when you go beyond that I cannot see how you can separate this wholly from a local authority, and I believe that would be wholly wrong.

Lord MONSON

The noble and learned Lord the Lord Chancellor charged me with regarding the potential Members of the Welsh Assembly as a collection of potentially malicious slanderers. I do not think I gave that impression. It is because I do not regard them as such that I think these Amendments are justified. Given that they are, by and large, highly unlikely to be malicious individuals, all the more reason to accept these Amendments. What have they to fear?

I am grateful for the support from the Conservative Front Bench and from the noble Earl, Lord Selkirk. Time and time again through these debates on Scotland and Wales the Government have maintained, when objecting to an Amendment moved from the Cross-Benches or the Conservative Benches, that Parliament remains sovereign; that these Assemblies will not have the status and dignity of a sovereign Parliament. Yet, in contrast, they are conferring the dignity they claim it is not to have by clauses such as Clause 23.

Exactly one week ago the noble Lord, Lord Glenamara—I am sorry he is not here—whom we know to be a keen enthusiast for devolution, from his speech on the Second Reading of the Scotland Bill, in referring to Conservative Amendment No. 43A, compared the prospective Welsh Assembly to a large local authority. Precisely. I could not have put it better. A large local authority is effectively what it is, and if you are going to confer absolute privilege on the Welsh Assembly, why not on the Greater London Council, which has charge over almost three times as many people? Why not on the West Midlands County Council, the Greater Manchester Council, or the West Yorkshire Council?

It is a question of the protection of the individual against malicious comment. It is easy to refrain from malicious comment. I accept the noble and learned Lord's criticism that it is perhaps difficult to divide qualified privilege from absolute privilege: I think it is better therefore to divide against Clause 23 stand part. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69C not moved.]

10.51 p.m.

On Question, Whether Clause 23 shall stand part of the Bill?

Their Lordships divided: Contents, 33: Not-Contents, 16.

CONTENTS
Ardwick, L.	Goronwy-Roberts, L.	Kirkhill, L.
Birk, B.	Harris of Greenwich, L.	Llewelyn-Davies of Hastoe, B. [Teller.]
Collison, L.	Hatch of Lusby, L.
David, B.	Houghton of Sowerby, L.	Lloyd of Kilgerran, L.
Donaldson of Kingsbridge, L.	Howie of Troon, L.	McGregor of Durris, L.
Elwyn-Jones, L. (L. Chancellor.)	Kagan, L.	Morris of Kenwood, L.
Murray of Gravesend, L.	Stewart of Alvechurch, B.	Wedderburn of Charlton, L.
Peart, L. [L. Privy Seal.]	Stone, L.	Wells-Pestell, L.
Ponsonby of Shulbrede, L.	Strabolgi, L. [Teller.]	White, B.
Rochester, L.	Taylor of Blackburn, L.	Winterbottom, L.
Segal, L.	Wallace of Coslany, L.	Wynne-Jones, L.
Stedman, B.
NOT-CONTENTS
Alexander of Tunis, E.	Monk Bretton, L.	Skelmersdale, L.
Elliot of Harwood, B.	Monson, L. [Teller.]	Stanley of Alderley, L.
Gainford, L.	Moyne, L.	Tweeddale, M. [Teller.]
Gridley, L.	Newall, L.	Vickers, B.
Harvey of Tasburgh, L.	Redesdale, L.	Westbury, L.
Middleton, L.

Moved accordingly, and, on Question, Motion agreed to.

Motion resolved in the affirmative, and agreed to accordingly.

11 p.m.

Lord ELTON moved Amendment No. 69A: After Clause 23, insert the following new clause:

Proceedings of the Assembly

(".—(1) Subject to subsection (2) below—

1. (a) the proceedings of the Assembly and of its committees appointed under sections 17, 18, 21 and 53 of this Act shall be conducted in public:
2. (b) a verbatim report of the proceedings of the Assembly shall be published as soon as is practicable following the day on which they take place;
3. (c) minutes of the proceedings of such committees shall be published as soon as is practicable following the day on which they take place.

(2) The Assembly may waive any provisions of subsection (1) above provided that—

1. (a) the Assembly resolves that such provision should be waived and, if the resolution is passed on a division, the members voting in favour of it number not less than two-thirds of the total number of members of the Assembly (including any whose seat is vacant); and
2. (b) the resolution is passed before the commencement of the proceedings; and
3. (c) the duration of the proceedings waived does not exceed 24 consecutive hours.").

The noble Lord said: The Assembly, which has now been granted privilege, and which may, upon the return of our enactment from the other place, be able to subsume the functions of the Welsh Development Agency and all the other major bodies referred to in earlier debates, will be an engine of considerable power. Its deliberations and decisions will closely affect the policy and the lives of the bodies and the individuals which it governs. It seems to us that, under those circumstances, it is right and proper that its proceedings should be known, and our Amendment seeks to provide that this shall be achieved by the publication of its proceedings.

The Amendment is a rather long one, and I expect that the noble Lord who is to reply will point out detailed defects of drafting which have escaped us— and I already see him nodding his sage and forgiving head. I shall be interested if he will address himself to these minutiae, because I think that this is a matter of some interest which we ought to get right. But there is the larger question of whether or not the proceedings of the Assembly, which is a national Assembly and which in some respects resembles a large local authority but in some sense a sovereign Parliament, shall be made public.

The means we have set our hand to are shown in Amendment No. 69A, subsection (1) of which brings in the proceedings of subject committees by reference to Clause 17, of executive committees by reference to Clause 18, of the scrutiny committee by reference to Clause 21 and, by reference to Clause 53, of the accounts committee. It requires, first of all, that proceedings shall be held in public; and, secondly, that they shall be published. The proceedings of the Assembly as a whole, we have suggested, should be reported verbatim, as are the proceedings of the two Houses of this Parliament. It would be unreasonable, I think, to lay upon the Assembly, with their limited resources, the necessity to publish verbatim accounts of all the proceedings of all the committees. None the less, it is necessary, we feel, for the public, public servants, members of industry and members of the professions generally to be able to evaluate the probable policy and the intentions behind policy to some extent by knowing what has gone on in the committees. It seems reasonable, therefore, that the minutes should be published. There will be no extra labour in preparing them, after all, since they will have to be prepared anyway.

Clearly there will be occasions when either of these main provisions—the provision that meetings shall be held in public and the provision that those proceedings shall be recorded and published—will not be appropriate to the occasion. The example that suggests itself is a committee which is discussing the long-term planning of a city, when there might be a suggestion that something obnoxious, like a glue factory, or something which would attract large and noisy crowds, like a sports stadium, should be set up in a quarter of the city, and when the result of the publication of those proceedings (although the suggestion might not have been made seriously and might later be dropped) upon the value of the surrounding property and the plans that people had for developing it would be dramatic. It is suggested to me that to allow that sort of speculative debate to be reported could be damaging.

It would not be a good thing if the waiver that we have placed in the Amendment was to be operated habitually or on a semi-permanemt basis. The tone of the Amendment is to say that it is normal to publish proceedings and it is exceptional to keep quiet about them. Therefore, the decision to sit in camera or not to publish the proceedings must be a decision of the Assembly carried by a substantial majority; and, what is more, the decision should only be valid for a period of 24 hours before it must be renewed.

This, as I have indicated, is a probing Amendment, at least to the extent that we do not consider that we have it right at this stage. I think that it has the merit of setting out these principles: the holding of most, or all, of the proceedings in public; the publication of all proceedings of the Assembly; the publication in the form of minutes of the proceedings of committees; and the power, when necessary, by a large majority—in other words, as an act of, one thinks, fairly rare occurrence—to set these provisions aside for a limited period. Those are the grounds we are seeking to establish. I should be interested to hear what the noble Lord's reactions to them may be.

Lord LLOYD of KILGERRAN

I should like strongly to support the principle behind the first part of these Amendments which, in effect, says that certain proceedings of the Welsh Assembly should be held in public and that there should be a verbatim report of those proceedings. I realise that questions of cost may arise but the central point in this matter is whether the Westminster Parliament should lay down that the proceedings of the Welsh Assembly shall be in public and that there should be these verbatim reports. I think that we should do this. We should give complete guidance to the Welsh Assembly on this matter. The Assembly must not start off in my view as a secretive body and for any reason not have these proceedings held in public. Its proceedings should be open and reported so that everybody will know what is going on.

Viscount AMORY

I think, if I may say so, that the verbatim report is important in this case. Local authorities through Wales will be extremely interested in the deliberations of the Assembly. They will want to have an absolutely up-to-date account of what is going on, what is being done and what is being said, just as at present they are able to get a Hansard account of all that goes on in Westminster. I think it essential that they should have as up-to-date a report as can be contrived of the day-to-day discussions in the Assembly. Therefore, I beg to support my noble friend's Amendment.

11.8 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

Certainly, I understand the anxieties which have given rise to this particular Amendment but I am afraid that the Amendment as tabled by the noble Lord is impractical for a number of reasons, as I will seek to persuade the Committee. First, the Assembly is going to be a democratically-elected national body and its proceedings are clearly going to arouse a great deal of national interest in Wales. If there is any danger of that interest flagging I suspect that its Members will take all possible steps to ensure that it is revived. I should be surprised if Members of this Assembly are not, in fact, in favour of the maximum possible publicity for all their deliberations. I think it is inconceivable that such a body would wish to conduct its deliberations in private other than in the most unlikely circumstances, or would fail to keep the public fully informed about what was going on.

I think that there are two principal objections to this new clause. We think it is unnecessary and, what is more, we think that it demonstrates once again the lack of faith in the ability of the Assembly Members to run their affairs responsibly. When this Assembly is established it will be because Parliament has approved the proposals and because they have been endorsed by the Welsh people. The proposals transfer considerable powers to the Assembly; surely Parliament and the Welsh people can safely assume that this body will act responsibly in accordance with the powers with which they have been entrusted.

So far as allowing the public access to proceedings is concerned, I readily acknowledge that some years ago a number of local authorities regrettably did not do this and that legislation was necessary, as the noble Viscount, Lord Amory, will recall, to ensure that they did. But that was back in 1960; times have changed and it is unlikely—to put it at its least—that the Assembly would seek to turn the clock back and revert to the practice adopted nearly 20 years ago by some backward local authorities. I do not think that is a realistic fear.

But we have to bear in mind that the Welsh Assembly will also be the Executive, and that some of the proceedings of its committees (especially of the Executive Committee) will be of a confidential nature. I acknowledge that this is recognised in the new clause, but the machinery proposed is totally impractical. It requires a vote by members representing two-thirds of the total Assembly seats before the Assembly or any one of its committees can exclude the public. Surely it can be left to the committees to decide when it is in the public interest for its proceedings to be held in private?

The practical problems of the system proposed by the Amendment would be enormous. An obvious example: suppose a number of members are absent and the two-thirds majority is not available; what does the committee do? Suspend business and try again to get a majority to meet in private next week? What happens if the business was urgent? What happens if there is an absolutely urgent need for a clear decision, and that decision, by reason of the nature of the business, has to be conducted in private? One can envisage certain circumstances where this might be necessary.

Let us take another example. How does the noble Lord envisage that this scheme would work during Assembly recesses or on other days when the Assembly is not sitting? Again I emphasise the Assembly will be the Executive, and some of its committees will need to meet or to be available to meet throughout the year. If urgent confidential business comes up in August what does the Executive Committee do? Bring two-thirds of the Assembly Members back from their holidays?

It seems an extreme proposition. I should be surprised if the noble Lord, who is an extremely reasonable man—if he does not regard that as an offensive description at this time of night—would regard that as a sensible way of conducting public business. I have no doubt about the admirable intentions of the noble Lord. I take note of what the noble Lord, Lord Lloyd of Kilgerran, and the noble Viscount, Lord Amory, have said with their very substantial experience of local authority life. But recognising their anxiety, I do not believe that an Amendment of this character could possibly be written into the Bill without creating the most significant practical problems.

We have to recognise that though in the past—and I repeat this point—a small number of local authorities did behave in a manner which two, possibly three, political Parties considered very bad indeed in trying to conduct their business wholly in secret—a very foolish course of action indeed—and Parliament eventually had to take action in dealing with this abuse, I do not believe in the situation of 1978 and after this year that this is a significant risk. Even if the noble Lord disagrees with me on that point, I hope that I have persuaded him that the Amendment as drafted simply would not deal with the problems that he has identified without causing a very significant number of quite serious problems for the Assembly.

Lord LLOYD of KILGERRAN

The noble Lord, as usual, has been persuasive on these matters. I agree with him that the drafting of this Amendment requires further attention, particularly the second part of it. But I have concerned myself purely with the principle of whether the proceedings of the Welsh Assembly shall be in public, whether there should be a verbatim report of the proceedings and whether this Parliament should give directions to the Assembly to that effect.

The noble Lord started off on the wrong premise. In my view, this is not a question of leaving it to the common sense of the Welsh Assembly. It may be for a variety of reasons that, when the Assembly starts, it decides not to publish its proceedings. It may be controlled in this matter by the question of cost. I think it is a matter for this Parliament, with its experience of these matters, to lay down a rule that their should be proceedings in public and that there should be a verbatim report of the proceedings. I hope that the noble Lord will agree that this is such an important matter that he will consider it so that the whole thing can be raised at a further stage of the Bill.

Lord ELTON

I am grateful to the noble Lord, Lord Lloyd, for his support. I was interested in the objections advanced by the noble Lord, Lord Harris, because it seems to me that the only substantial ones were the last two. These objections were that the proceedings of the Executive Committee in particular, but also others, might need on fairly frequent occasions to be confidential, and that on those occasions a sufficient number of Assemblymen might not be readily available to make it possible to proceed.

There is clearly a defect in subsection (2) of the Amendment, as I said when I moved the Amendment. But the noble Lord has not addressed himself, I think, to the principle, beyond saying that the Members of the Assembly could be counted on to see that they remained under the limelight in all circumstances; and, of course, the noble Lord, unlike most of us on this Bench, does not have to listen to the whole debate on the Bill, so he has not heard this great cry: "Lack of faith", going out again and again, as we have. It becomes really somewhat dispiriting and annoying.

I do not wish to have to return to the charge on this matter every time; but let us accept that there should be some provision for the publication of the proceedings of the Assembly, to which the noble Lord raised no substantive objection whatsoever. Let us consider that they might meet and decide—for reasons of economy, because the expense would be considerable, or for some other reason—not to publish reports of their proceedings regularly. Would it not be an unsatisfactory decision, and would not the noble Lord recognise that it would be a far worse insult to the Assemblymen to tell them that they must do what they were not doing after they had met than to provide them with a means of doing it before they met? It may be that his feelings would be satisfied if we made this a permissive clause rather than a requirement. That is another aspect which we have not yet looked at. Nor have we looked in any detail at all at the requirements for public sittings and the admission of the public as opposed to the publication either of a verbatim report or of the minuted proceedings.

Clearly the Liberals agree with us on this, and it is a serious matter. Although we do not propose to press it in this form at this time, we feel it is something in which we would have the support of the Welsh. We believe the people of Wales are likely to take our view rather than that advanced by the noble Lord. Therefore, it is essential to ask whether he considers that the requirements in subsection (2) could be modified in such a way as to make them acceptable; or whether the requirements in subsection (1) could be drafted in such a way as to make those in subsection (2) superfluous; also whether he feels that either the requirement that the committees' proceedings should be published verbatim, or the requirement that they should sit in public except on special occasions, is unreasonable. We have two areas here. We have the Assembly and we have the committees. Let us deal with them turn by turn. What is the noble Lord's answer to my questions in relation to the Assembly?

11.20 p.m.

Lord HARRIS of GREENWICH

What I have said to the Committee, I hope moderately persuasively, is that the Amendment put forward by the noble Lord, is unacceptable for the reason that I have given; namely, that it would create a totally unworkable situation. The noble Lord, Lord Lloyd, and the noble Lord, Lord Elton, asked whether we would consider the matter, and of course we will. It would be foolish of me to say that we will disregard everything that is said in this Committee stage. It would be a remarkably presumptuous position to adopt. What I said in putting forward the Government's position is that we must leave a good deal to the common sense of the committees.

I hope that the noble Lord was not chiding me for not being present during the extremely persuasive speech of my noble and learned friend Lord Morris of Borth-y-Gest, which carried the entire Chamber, except the noble Lord and a few of his friends. It seems to me that there was a great deal of justification for what the noble and learned Lord said on that occasion. But I would not wish at 11.20 p.m. to return to the controversies of the past, save to say that we will gladly consider what has been said. I cannot make any commitment. What I can say is that the Amendment as drafted is wholly unacceptable, for the reasons I have given, but we will take note of what has been said and reflect upon it before the next stage.

Lord SWANSEA

Before my noble friend gets up, there might be another way of dealing with the question of admission of the public to the Assembly; that is, by bringing the Assembly within the provisions of the Public Bodies (Admission to Meetings) Act 1960. Perhaps the noble Lord opposite could consider that in the context of this Amendment. That could be done quite simply by an Amendment to Schedule 11, to amend the Schedule to the Public Bodies (Admission to Meetings) Act, so as to apply that Act to the Assembly.

Lord HARRIS of GREENWICH

Certainly, I will reflect on that. But I tried to point out the situation so far as the 1960 legislation is concerned. I can remember attending some of the Standing Committees in another place, as a person who was at that stage a member of a local authority interested in what would be said about it. But that was to deal with a situation that arose in 1960, in regard to a handful of local authorities. I think—and I say this in no offensive spirit to the noble Lord, Lord Swansea, or to anybody else—that we must beware of "nannying" this Assembly on every conceivable aspect of its activities, giving the most detailed instructions on every aspect of its work. These will be reasonable, moderate, sensible people wanting to do a good job for the people of Wales. We must trust them and not always work on the assumption that they are foolish and irresponsible people, whom the late Randolph Churchill described as silly-billies. They will not be silly-billies. They will be sensible, reasonable people.

Lord ELTON

I always wondered where the Chancellor of the Exchequer got the phrase from. I am obliged to the noble Lord for w hat he has said, but I cannot say that I am encouraged by it. I do not think a requirement that an Assembly of the stature and authority which the noble Lord proposes should publish its proceedings, is in any way "nannying". I do not think we are legislating for silly-billies; we are legislating for human beings. This is an attribute of the Assembly that most of us would wish to see in the Bill, and I think that the Welsh people would like to see it in as well.

We must definitely come back at Report stage with an Amendment which will embody what we have in mind. I suspect that, despite the spirited way in which the noble Lord has resisted what I put down, there are areas of agreement there and the likelihood of our getting something which is right and proper, after the advice of the noble Lord and his advisers, is very much greater than if it is done in the teeth of their silence. Therefore, I hope that the noble Lord will be kind enough to write to me, not so much setting out his objections to the Amendment as it is tabled, because that would be to tilt at a windmill, but addressing himself to those parts of the principles embodied in it which lie feels can properly be given to the Welsh Assembly without appearing to "nanny" them. If I can count on that support, I shall be happy to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 24 [Staff]:

11.25 p.m.

Lord ELTON moved Amendment No. 69G: Page 10, line 9, at beginning insert ("Subject to the consent of the Minister for the Civil Service").

The noble Lord said: This Amendment takes us to line 9 on page 10. The suggestion is that the words Subject to the consent of the Minister for the Civil Service

should be inserted at the beginning of line 9. I do not want to delay for too long on this Amendment. The noble Lord is closely in touch—much more closely in touch than I have ever been with the affairs of the Civil Service. It occurs to me that there is a very large professional and largely voiceless opinion, because of the constraints imposed by public service, which will be very interested to hear what linkage is intended between the Assembly and the Home Civil Service.

We have touched before on this point. It seemed to me that the obvious way to give the noble Lord an opportunity to make a statement of a reassuring nature would be to table an Amendment which made the appointment of officers and servants of the Assembly subject to the advice or consent of the Minister for the Civil Service, since it would then bring the employment of civil servants by the Welsh Assembly into the perspective of the United Kingdom Civil Service. That is the motive which lies behind the tabling of this Amendment, which I beg to move.

Lord HARRIS of GREENWICH

If it had not been for the fact that the noble Lord, Lord Elton, had indicated that this was a probing Amendment, I might have felt constrained to say that the Amendment was both misconceived and unnecessary. However, I do not have to say that. Two anxieties have been expressed. There has been some discussion of the problem, and it is right that there should have been. Certainly we want to avoid any situation which could cause confusion and conflict between Whitehall and Cardiff.

Two particular anxieties have been expressed in the discussion which has taken place on this question. The first is that there would be insufficient control over the selection of individuals for appointment by the Assembly. The second is that there would be inadequate control over the total number of civil servants to be employed by the Assembly: that the Assembly would decide to appoint an altogether unreasonable number of people, that this by itself would be foolish and that action should be taken to prevent it.

The Government do not accept that either of these points gives rise to any justifiable anxiety, for reasons which I hope to persuade the Committee are justified. First, the Amendment provides for consent to individual appointments by the Minister for the Civil Service. This, in our judgment, is unnecessary. Clause 65 provides that officers or servants of the Assembly shall be civil servants; as such, they will need to have been certificated by the Civil Service Commissioners. Individuals who work for the Assembly will be part of a unified home Civil Service and will be recruited strictly according to the standard procedures applying to recruitment to the home Civil Service.

After appointment, all officers and servants of the Assembly will be subject to whatever controls the Government may apply to the terms and conditions of civil servants generally. This seems to the Government to provide adequate safeguards against the possibility of the appointment of a totally unsuitable individual as a civil servant of the Assembly. I think that it is unreal to suggest that the Assembly might canvass for appointments throughout the entire Civil Service.

There is the question of control over total numbers. It is an important point. I would in no way wish to diminish its significance. On this question the Bill does not provide for any kind of direct Government control over the numbers of civil servants who will be employed by the Assembly. That is absolutely true. The Assembly could reasonably, in our judgment, regard such control as an unwarranted interference in its affairs. It is being given substantial powers. It is surely up to the Assembly to decide how many staff it needs to carry out its responsibilities.

The manpower implications of any policy will need to be weighed as an important component in the exercise of responsibility for devolved matters. This is the point which I think is most important in this whole question. An important constraint will be that staff costs will have to be met out of the block fund. If the Assembly were to appoint an altogether unreasonable number of officials it would simply have less money in the block fund for other purposes. That seems to me a perfectly proper way of limiting any less responsible Member of the Assembly who might urge the appointment of an unreasonable number of officials.

On the other hand, to provide for the consent of the Minister for the Civil Service as to numbers carries with it the implication that the Government could frustrate policies of the devolved Administration and would be constantly monitoring performance and efficiency. This could well create some degree of conflict, as I indicated earlier. No similar control—and the noble Viscount, Lord Amory, will I am sure bear me out on this—is attempted as far as local government is concerned. Any attempt to impose it would, I think very reasonably, be most strongly opposed. I think it perfectly reasonable that the clause as it is at the moment should stand unamended. There are constraints on the Assembly as far as numbers are concerned. Its officials will be members of the home Civil Service. That is a development which we should all welcome.

11.33 p.m.

Lord ELTON

The noble Lord adduced some valuable and interesting principles. The first, which will be read with attention, if it is not already known, is the fact that the standard procedures for appointments will operate. That will set a number of fears at rest.

The other point that I wanted to take up very briefly is this. The noble Lord said—as is apparent from the Bill—that there is no control over numbers and that this is an important consideration. He said that the restraint that exists is financial, because the payment for the civil servants employed by the Assembly will be found out of the block fund, and will therefore be seen as a deduction from the rightful income of the Welsh people. But if there is no control over these numbers—and I accept what he said about manning and all the rest of it, as he expressed it in this Amendment—can he tell me how, and upon what authority, the Government have arrived at the estimate on page vi of the Bill (Effects of the Bill on Public Service Manpower) that the number of civil servants in Wales is likely to increase by about 1,150 over forecast levels? While he is about it, can he tell us to what extent this increase will be mirrored by any decrease in the Welsh Office staff?

Lord HARRIS of GREENWICH

Obviously, there will be some movement from the Welsh Office to the Assembly. That is certainly true. We have made what we consider to be a reasonable calculation as to numbers. I hope that the figures will be borne out. These decisions will be matters for the Assembly. We think that this is, taking a very broad view of the matter, a reasonable calculation to make, given the responsibilities which it is suggested should be devolved to the Assembly. It would be absurd for me to say that there might not be some marginal variation one way or the other, but I think it is a reasonable calculation as to numbers.

Lord ELTON

I am interested. I do not want to delay too long over this, but had the Explanatory Memorandum said "about 1,000" or indeed "about 1,100" civil servants one would have regarded that as an approximation, but it does not: it says "about 1,150" which is a very precise figure. They could have said "1,153" and that would have aroused all my suspicions, but it seems to me that somebody here has prepared a document which is going to be submitted to the Assembly when it meets, or to the officer of the Assembly whose job it is to find the original complement of personnel, and that they have decided that on that piece of paper should be written the number 1,150. Otherwise, so far as I can see, the Government have merely taken it upon themselves to make a calculation and assumed that the Assembly will make the same calculation.

The interest in the conundrum as to which of the two processes the Government have followed is this. In the one case they will be exercising a monitoring function, and in the other they will not. Is the noble Lord telling me that they are not going to give advice on this, and they have not already formulated a policy as appears to be portrayed by the Explanatory Memorandum, or is he not?

Lord HARRIS of GREENWICH

I am sure that those concerned will be very glad to make certain suggestions to the Assembly once it is appointed. We have made a reasonable calculation so far as numbers are concerned. It may be that for presentational purposes the last 50 was an error of judgment—I will give the noble Lord that point. We tried to make as reasonable a calculation as possible in the circumstances, and our assumption is that this is round about the number of people who will be appointed by the Assembly. But, as I have said, if the Assembly were (most unlikely) to submit to pressure from its membership that it should appoint an unreasonable number of people there would simply be less money in its funds for other purposes and therefore it would be a self-defeating thing to do.

Lord ELTON

I am glad to hear that the Assembly will benefit from the advice of the Government, as I supposed that it would, and that it will not be placed in a governmental straitjacket, as I did not fear that it should. We have it on the record and I am obliged to the noble Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.38 p.m.

Lord PONSONBY of SHULBREDE moved Amendment No. 69E:

Page 10, line 10, at end insert ("and, in making any such appointment, it shall not solely prefer a person by reason of his being, or having been, a civil servant over a person who is, or who has been, a local government officer.

(2) In this section— civil servant" means an officer or servant of the home civil service; and local government officer" means an officer or servant of a county council or a district council in Wales or a community council.").

The noble Lord said: I am approaching the particular problem of the appointment of the Welsh Civil Service from a different aspect from that of the noble Lord, Lord Elton. This Amendment should be read in conjunction with my Amendment No. 102S to Clause 65, which seeks to establish a Welsh public service. In moving this Amendment and speaking to the subsequent Amendment I am seeking to ensure that in the establishment of—

Lord HARRIS of GREENWICH

Will my noble friend give way? I apologise for intervening, but when he referred to the subsequent Amendment, which one was he referring to? Was he referring to the Amendment to Clause 65?

Lord PONSONBY of SHULBREDE

Yes.

Lord HARRIS of GREENWICH

I am much obliged.

Lord PONSONBY of SHULBREDE

In the establishment of an independent comprehensive public service for Wales, my particular concern is to ensure that local government officers in Wales shall have equal opportunities with civil servants to take part in and to be members of the public service in Wales. I would not wish to see them disadvantaged in any way in applying for positions within the service. It may well be that my noble friend will be able to give us assurances on this point. It is, I am sure, in the best interests of the Assembly that it should be able to draw on the widest possible expertise for the establishment of a civil service, as one may call it, for the Assembly. I hope my noble friend will be able to give that assurance. I beg to move.

11.41 p.m.

Lord HARRIS of GREENWICH

There are two matters dealt with in my noble friend's Amendments, and I shall deal with them in turn. The Amendment to Clause 24 would require the Assembly, in appointing staff, not to show preference to civil servants over local government officers. In considering these Amendments your Lordships will need to have regard to Clause 65, to which the second Amendment applies, which provides that officers and servants of the Assembly must be civil servants. Thus, although they will be appointed by the Assembly, these officers and servants will be members of a unified home Civil Service and will be recruited according to the standard procedures applying to the appointment of civil servants. They will have to be certificated by the Civil Service Commissioners.

I think it important to bear in mind that the Assembly will be taking over functions currently undertaken by central Government, and especially by the Welsh Office. Accordingly, it is our expectation that a substantial number of the staff employed by the Welsh Assembly will transfer from the Welsh Office with their jobs. In addition, we expect a number of the Assembly staff to be recruited as a result of trawls through the Civil Service, the normal procedure which applies when new organisations are established. For example, there will be many Welsh men and women who are currently employed as civil servants outside Wales who will welcome the chance to return and to work for the Assembly. Thirdly, we would expect some new civil servants to be recruited to serve the Assembly, and of course it will be open to officers in local government to join the United Kingdom Civil Service in the usual way with a view to joining the staff of the Assembly. Furthermore, opportunities might also arise for the temporary secondment or interchange of staff between the two services.

It is our view that this Amendment is misconceived. In appointing its permanent staff, the Assembly will not normally, as the Amendment appears to envisage, be faced with a choice of, for example, a civil servant or a local government officer. Before the stage of the Assembly making an appointment is reached, the individual will have to have been through the normal Civil Service recruitment procedures. The Assembly will have a choice of individuals all of whom will be civil servants, although some may well have had former careers in the local government service. It is, therefore, in our judgment, unnecessary and misleading to provide that the Assembly shall not discriminate between civil servants and local government officers.

I turn now to the second Amendment, which is the Amendment to Clause 65. This would provide for the establishment of an entirely separate Welsh Civil Service. The Government are not prepared to accept this suggestion, because we see the great benefits arising from retaining a unified Civil Service. First, a unified service is likely to be both more economical and more efficient. Separate services would undoubtedly require more staff, greater expenditure on recruitment, training and so on. A single service would provide the devolved Administration with a wider range of talent and experience than it might otherwise attract, and would also provide a more attractive and flexible career structure, which is an important consideration. This would be especially true for those specialists, who would necessarily be employed in small numbers, who would otherwise have a limited chance of varied job experience and a low ceiling to their promotion prospects.

If I may, I will take one example from my own ministerial experience as far as the Police Service is concerned, though that no doubt was as a result of the creation of larger police forces. There is no doubt whatever that the career prospects of a number of specialist officers were very dramatically enhanced. This is not a precise parallel of course—we are not talking here of the amalgamation of police forces—but so far as creating a proper career structure for these officers goes, I think this a not inappropriate analogy to make.

Secondly, a unified service will provide an established and experienced means of sorting out matters of common concern both to Westminster and to Cardiff. There are bound to be some teething problems when the Assembly is first established and we think that a unified Civil Service will do a great deal to assist in the solution of these problems.

Thirdly, the staff concerned have left us in no doubt that they wish to remain part of a unified service, and we cannot assume that they would necessarily wish to transfer to an altogether different service from that into which they were recruited. I think that it is necessary to weigh very carefully indeed their very clearly expressed preferences. In the light of what I have said, I very much hope that, on reflection, my noble friend will agree not to press these Amendments.

Lord PONSONBY of SHULBREDE

I can hardly say that I was taken by surprise by my noble friend's remark concerning the establishment of a Welsh public service under Clause 65. I was glad to have his assurances concerning the possibilities of local government officers gaining appointment to the Civil Service which will service the Assembly, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The CHAIRMAN of COMMITTEES (Lord Aberdare)

There is an error in the Marshalled List. There is another Amendment to Clause 24, Amendment No. 69J, to be moved by Lord Swansea.

11.49 p.m.

Lord SWANSEA moved Amendment No. 69J:

Page 10, line 10, at end insert— ("(2) A person may not be disqualified from being an officer or servant of the Assembly by reason only of his inability to speak the Welsh language").

The noble Lord said: This is a probing Amendment. In moving it I am aware that I am skating on very thin ice, because I know only too well the passions that can be aroused in some quarters if one appears to disparage the Welsh language. That, of course, I have no intention of doing. It must not be thought that I wish to disparage the Welsh language or to suppress it at all, because it is a language of great antiquity, as we heard from the noble Lord, Lord Maelor, in the Second Reading debate, and it is a language of great beauty. At the same time it is one which is spoken by only one-fifth of the population of Wales, and in the Second Reading debates I expressed concern that in the staffing of the Assembly there might be discrimination against non-Welsh speakers, and that certain jobs might become "jobs for the Welsh-speaking boys." Some of the unions, I think, are concerned about this, and I refer to communications I have had from the Society of Civil and Public Servants. They support this Amendment and say that their members in the Welsh Office have long resisted attempts to designate certain jobs within the office as requiring the ability to speak Welsh.

Of course, I acknowledge that there will be certain posts under the Assembly where an ability to speak Welsh will be essential. At the same time it would be a great pity if certain positions—especially in the senior grades—should become a closed shop. I should be very glad if the noble Lord opposite could give an assurance that in other cases the proportion of officers who are required to speak Welsh will reflect the extent to which it is spoken in Wales as a whole. I beg to move.

Lord DONALDSON of KINGSBRIDGE

It has been a constant theme of many Welsh anti-devolutionists, notably Mr. Leo Abse, that the establishment of the Assembly could lead to the creation of a bureaucratic élite of Welsh-speaking civil servants and to the imposition of a Welsh-speaking qualification on a wide range of public appointments in Wales, to the detriment of the English-speaking majority, which I think is the fear at the back of the noble Lord's Amendment. There is no known instance in current legislation of a restraint on powers of appointment similar to that contained in the Amendment, but there are a few instances of requirements to give preference to Welsh-speaking applicants—in appointments as inspectors of factories, mines and quarries in Wales—which it seems to me is quite legitimate. A similar Amendment by my honourable friend Mr. Leo Abse and others was debated during Committee stage of the Wales Bill in the Commons. That Amendment provided additionally for any person discriminated against on grounds of language to have the right to sue the Assembly for damages.

It is important that Clause 24, which gives the Assembly a formal power to appoint its staff, should be read in conjunction with Clause 65 which provides that: Service as an officer or servant of the Assembly … shall be service in the home civil service of the state, and appointments … shall be made accordingly". The machinery for making permanent appointments to the staff of the Assembly is governed by the Civil Service Order in Council 1969. This order provides that the Civil Service Commissioners shall certify the qualification of persons applying for permanent appointment. Nobody can receive a permanent appointment without such a certification.

All that Clause 24 does, therefore, is to give the Assembly the same formal powers of appointment as are available to Ministers in the United Kingdom. The general processes of selection and recruitment of permanent staff will be carried out, not by the Assembly, but by the Civil Service Commissioners. Thus, there will be no significant change from the existing practice as it applies to the Welsh Office and other Government Departments. This is one of the consequences of maintaining a unified Civil Service covering Wales and Scotland as well as England.

Basically this Amendment is misconceived in so far as it assumes that the Assembly will hand-pick all its staff and will be able to impose conditions on recruitment which do not apply to the rest of the Civil Service. There are some instances, such as senior appointments and temporary short-term appointments, where the Assembly may have more than a formal rÔle, but these are matters for discussion with the Assembly when it is established with a view to ensuring that the standard United Kingdom practice is followed. Furthermore, the Amendment overlooks the need to make certain appointments, mainly of translators, for which a knowledge of Welsh is essential. There is already a Translation Unit in the Welsh Office, and the Welsh Assembly will certainly need some staff with knowledge of the Welsh language, particularly in these areas that deal directly with the public.

In general, the proposer of the Amendment, the noble Lord, Lord Swansea, appears to be anticipating difficulties which will not arise—if I may say so, not for the first time in our discussions. After all, the Welsh Assembly will be elected by and will be fully representative of the people of Wales. Even if it were able to pick and choose all its staff, it would hardly be likely to act in a way that would antagonise the English-speaking majority in Wales. Its actions will be under scrutiny, not only by the electors, but also by the staff associations and others concerned; and its permanent staff will form part of the United Kingdom Civil Service, liable for service in the appropriate grades in any part of the Kingdom and selected by the same process. I hope that what I have said will convince the noble Lord that his Amendment is misconceived and that the problems which he fears will not arise. I hope that I have satisfied him on that.

Lord ELTON

It might, perhaps, be a good thing if I repeated now more clearly what I said at an earlier stage in our debate when the question of language qualification arose. I think that what the noble Lord has said reinforces the satisfaction which I felt at that stage that this was not a subject which we could regard as a real threat; that it was a subject which the Welsh could properly look after themselves. I am much obliged to my noble friend for giving an opportunity for what has proved to be a much fuller statement on the subject than we were able to acquire earlier today—and perhaps given at a lower temperature. I think that this will be extremely helpful. As I said then and say now, this is not something that we wish to press. We merely wish to elicit the information, and this has been most ably done.

Lord HARMAR-NICHOLLS

That is perfectly all right and the reply from the Minister and my noble friend is fair enough. But I am a little suspicious of this dogmatic assertion that it will not arise. The noble Lord has given very good reasons, quoting both Clause 65 and this one, why, in his view, the chances of it arising are remote; but the phrase "will not arise" is very dogmatic and very certain.

I merely rose to say that I should have expected the Government to produce an Amendment which would have met the point the noble Lord made, that there are grades and there will be jobs where the knowledge and the ability to speak the Welsh language is quite essential. So this particular Amendment which my noble friend is moving does not meet that point. But the noble Lord himself quoted the views of the honourable Member for Pontypool and others there. This is not the fear of someone outside Wales; this is a fear expressed by Welshmen who understand it, who have held office, who have been Members of Parliament for many years and who would not want to create any sort of feeling in this, recognising that there is a majority of English-speaking people in Wales.

Even at this late stage, is there no chance at all—and we are in no way brushing aside the point made by the noble Lord—of the Government recognising the genuinely-felt apprehensions of the people in Wales—people who have authority and who have expressed their views—and of meeting the point that we must have some who understand and speak the Welsh language? It should not be dealt with by a mere statement that it will not arise, because if one wanted to use the time I could describe circumstances where it might well arise with the powers that the Assembly has under the rest of the Bill. I should have thought that, because of these feelings, the Government ought even now to find some form of words that would meet the point the noble Lord has made and which would face up to the apprehensions which are very genuinely held, not only by those in the United Kingdom outside Wales but by those who speak with authority inside Wales itself.

Lord DONALDSON of KINGSBRIDGE

There is a point in what the noble Lord has said. There is no doubt that there are apprehensions in Wales that a small minority of determined people will be able to behave in an unjust way. This is not something that we can deal with in general legislation. It is true in this country; we have small groups of determined people who are trying to ruin the country. We do not make general legislation against them. The noble Lord does not want to. This is not the way we deal with it. I cannot think of the right analogy, but I think he is punting up the wrong alley. I do not think that the fact that a small and determined group of people could do damage is something which general legislation should take into account.

I hope the noble Lord will leave it like that. If we are to do as he suggests we will have to legislate against every dangerous possibility, and not only the viciousness of certain over-zealous Welsh Nationalists but the viciousness of all the other minority groups, of which there are some hundreds. I do not think we can do it. It would be much better to leave the matter as it is.

Lord SWANSEA

I am grateful to the noble Lord for his clarification of this point. This was a probing Amendment and was simply for purposes of clarification. I appreciate that there will be certain posts where knowledge of Welsh will be essential—in translation, and certain other departments. I am glad to have the noble Lord's assurance, but I think he was a little optimistic in saying that the situation will not arise. It should not arise, anyway. What he has said will be noted with some satisfaction by the unions concerned. I am grateful to him for clearing up the matter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 24 shall stand part of the Bill?

12.1 a.m.

Baroness VICKERS

Clause 24 says: The Assembly may appoint such officers and servants as it considers appropriate". As we know, in the House of Commons and the House of Lords we have permanent staff who are directly employed. These staff are not civil servants. They are either officers or officials of the House of Commons or the House of Lords. They are distributed among five different departments, as the noble Lord will know, so I shall not go into detail. Are there going to be any such type of permanent servants in the Assembly? I gather from what is stated in Clause 24 that there is the possibility of having officers and servants of this type.

I think it is advisable to have them because there are so many duties that must be permanent. For instance, the House of Commons has a post office, its own transport department, its own refreshment department, and I presume that the Assembly will want these. I presume that these people will not necessarily be civil servants. Who is going to do the cleaning of the building? I gather it is done here by the DOE. Are all these provisions made?

I believe there is some feeling about this question of permanent servants as opposed to civil servants. I should like to know whether there is going to be an establishment for such officials of the Assembly on the lines we have here. I think they play an important part. I suppose that there ought to be an establishment section for the administration of the departments even if there are many fewer than here. I should like to have an acknowledgment from the noble Lord as to how this is going to be done.

Lord DONALDSON of KINGSBRIDGE

There is a simple answer, unusually, to the noble Baroness's question. All Welsh Assembly staff are to be civil servants, unlike in the Scottish Assembly which is a legislative body. The answer is quite simple: the cleaner, the administrator, the post office, and all the rest will all be civil servants.

Clause 24 agreed to.

Clause 25 [Inquiries]:

12.5 a.m.

Lord ELTON moved Amendment No. 69H: Page 10, line 12, after ("matter") insert ("except for the structure of local government in Wales").

The noble Lord said: I am sure the Minister recognises that this Amendment chimes in with the Division we had earlier on Clause 12, which removed from the Assembly the duty to review the structure of local government. Whether or not the Amendment is relevant turns on the meaning of the word "inquiry", because under Clause 25, The Assembly may cause an inquiry to be held into any matter relevant to the performance of any of its functions". In the backwash, as it were, of our furious exchanges about Clause 12 apprehension was expressed that the immediate reaction might be to substitute an inquiry under Clause 25 for a review, as it was called, under Clause 12. Is the noble Lord able to set my mind at rest by explaining the difference between a review and an inquiry?

Lord DONALDSON of KINGSBRIDGE

I will endeavour to put the noble Lord's mind at rest and, if I succeed, that may shorten the evening's work. The removal of Clause 12 removes the mandatory obligation, which was in the Bill, that the Assembly should look at the problems of local government. Under the Bill as it stands, however, there is a discretionary power for the Assembly to hold an inquiry, … into any matter relevant to the performance of any of its functions". It is, therefore, a discretionary power. It is modelled on Section 250 of the Local Government Act 1972 which permits a Minister to hold a local inquiry and to call for papers and witnesses. I do not know whether it is necessary for me to go further than that; the answer is that the right to hold such an inquiry exists. The removal of Clause 12 stops the mandatory obligation to do so, but it does not remove the discretionary right. I hope that is sufficient of an explanation for the noble Lord. If not, I could go on for quite a long time.

Lord ELTON

I hate to stand between the Committee and the pleasure of hearing the noble Lord continuing for quite a long time, but he has said what I was hoping he would say. I will, naturally, consider and take advice on what he said, but it seemed to me that it was the mandatory nature of Clause 12 that caused us anxiety and the mandatory nature of the recommendations to be presented. I wanted to clear my mind as to the fact that this is a permissive power, and of course there are many aspects of local authority workings which are properly within the ambit of the Assembly, and one hopes they will be inquired into. Accordingly, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 agreed to.

Clause 27 [Supplementary powers]:

Lord ELTON moved Amendment No. 70: Page 10, line 24, at end insert ("and any expenses incurred under this section shall be paid out of the Welsh Consolidated Fund").

The noble Lord said: I have my probe in my hand again in that I tabled this Amendment as a confession of my ignorance of the financial proceedings which will be better understood by my noble colleagues when we come to Clause 40 and the passages which lie beyond. I should like to know whether this clause has any purpose other than that being probed by my noble friend in the next Amendment, No. 70A, which might be of a financial nature. This is a permissive clause allowing the Assembly to: … do anything (whether or not involving the acquisition or disposal of property) which is calculated to facilitate, or is conducive or incidental to, the discharge of its functions". I assume the purpose of the clause lies within the brackets; it is to make it clear that, when it is carrying out its functions within the limits set by the measure, those limits include the acquisition and disposal of property.

This may be simply a question of throwing out a wing to improve the feeding facilities for the Members later; I do not know. However, if the Assembly is to do the things mentioned, will this expenditure, like all the rest, come out of the Welsh Consolidated Fund, or is access given by the clause to some other source of revenue? I beg to move.

Lord DONALDSON of KINGSBRIDGE

The answer to the noble Lord's question is, yes. Expenditure under Clause 27, like all other expenditure for purposes for which the Assembly may exercise its powers, will have to be paid out of the Welsh Consolidated Fund. That will be the only source of finance available to the Assembly for both current and capital expenditure. Its powers of borrowing, which are listed in Clause 46, are available only to meet short-term deficits in either the Welsh Consolidated Fund, or the Welsh Loans Fund, and borrowing will, in any case, normally take the form of a temporary bank overdraft. Expenditure under Clause 27 will have to be covered by an appropriation order made by the Assembly, under Clause 42, on the recommendation of the Executive Committee. Such an order provides authority under Clause 41 for the issue of credits by the Welsh Comptroller and Auditor General on the Welsh Consolidated Fund. I hope that that answers the noble Lord's question—

Lord HARMAR-NICHOLLS

I wish to raise a matter with the noble Lord before he sits down. With regard to the point that expenditure would have to come out of the Consolidated Fund, can the noble Lord tell me whether the Assembly would have power to organise, for example, a Welsh lottery to raise money which it could spend on items which would be covered by the provision we are considering?

Lord DONALDSON of KINGSBRIDGE

Answering off the cuff, I should say, yes; but I think that I should write to the noble Lord because I may be wrong.

Lord ELTON

The noble Lord has a capacious and ready cuff, and I hope that it is correctly inscribed. I am much obliged to the noble Lord for what he has said, which has clarified the situation. The only doubt which remains in my mind concerns what is a short-term deficit. My bankers and I often have a disagreement about this point, and perhaps the Assembly will as well. That aside, I am obliged to the noble Lord for giving the information which I requested, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.13 a.m.

Baroness ELLES moved Amendment No. 70A:

Page 10, line 24, at end insert— ("Provided that any acquisition of agricultural land or restriction of right over agricultural land by the Assembly under this section shall be subject to an Order by the Secretary of State and such Order to be approved by resolution of each of the Houses of Parliament. 'Agricultural' for the purposes of this section shall have the same meaning as in s. 290 of the Town and Country Planning Act 1971.").

The noble Baroness said: The Amendment refers to the very wide supplementary powers given to the Assembly by the provisions of Clause 27. I wish to refer in particular to the power to acquire or dispose of property, which is mentioned in the clause, and which, according to Clause 17(2)(b), could be exerted by one individual, naturally on political grounds. It appears that the farming community in Wales is worried about this power. The power is granted by the clause in conjunction with Clause 10, which refers to the right of the Assembly to do anything it considers appropriate in order to support a whole list of items, including sport and other cultural and recreative activities". In this regard the Assembly might be involved in acquiring land.

The purpose of the Amendment is to enable the Secretary of State to issue approval by order where the right of acquiring agricultural land is involved. As I say, it is a particular concern of the farming community that agricultural land can be acquired and disposed of under the clause. As the noble Lord will be aware, the definition to which I refer, in Section 290 of the Town and Country Planning Act, is a fairly wide one. I will not take up the time of the Committee in reading out all the categories of land which come into that definition, except to say that they include grazing land, meadow land, market gardens, nursery grounds and the use of land for woodlands. The definition in fact covers quite a large number of various types of agricultural land.

Of course, under the Bill as it stands the acquisition of land does not have to be for a specific purpose. In the clause it states that the Assembly can do anything—referring, referring, of course, to property— which is calculated to facilitate, or is conducive or incidental to, the discharge of its functions". This means that it would operate if the Welsh Assembly was considering planning matters; sport, to which we have already referred; possibly matters connected with its powers relating to passenger transport, which we have already discussed this afternoon; aerodrome construction; highways; or, of course, matters relating to the many powers and functions which are enumerated in Schedule 2. So the Committee will be aware that the powers of the Assembly are very considerable, particularly, in this clause, in relation to the acquisition and disposal of property, including, as the clause stands, agricultural land. I should therefore be grateful if the Government could say how these supplementary powers might be used and for what purposes, and how they might be controlled, at any rate to some extent, for as the Bill stands they may be used even by only one individual. This, I think, needs elucidating in order to set at rest not only our minds, that such powers could reside in one person, but also the minds of the Welsh electors.

I think it should be said on this side of the Committee that it is not the Welsh Assembly as such which causes us great concern as the fact that the bureaucratic control which is built into this particular Bill, and the way the Government envisage it functioning, is going to deprive the citizen of certain protective rights. It seems more and more that in this Bill the image of democracy is being obliterated by the kind of clause that we have before us now and are considering. There seems to be little or no restriction or limitation on the use of the powers which are being given to the Assembly, even to the extent, as I say, of them being exercised by one individual. I shall be grateful to hear the comments of the noble Lord, to know what right of protection a small farmer in some part of Wales would have against what I consider could be, anyway, arbitrary action on the part of one individual in the Assembly. I beg to move.

Lord SKELMERSDALE

Before the noble Lord, Lord Donaldson, answers, perhaps I could address a question to my noble friend Lady Elles. I have had a fairly comprehensive look at this Amendment, and it seems to me that what she has proposed is quite a large measure of what we have been accustomed to call overkill. I see the noble Lord, Lord Donaldson, smiling. I did not expect that I would be able to join forces with him on this, but we shall have to wait to see what he says. The point surely is that if we take, for example, a swimming pool which, for one reason or another, is on the edge of a town and has alongside it a small dairy farm, it may be that for some reason it is necessary to put a new heating plant into the swimming pool and that a very small parcel of this dairy farm will need to be compulsorily purchased. It could be well under half an acre; it might be a matter of only a few square yards. In this case, my noble friend has suggested that such an order be approved by Resolution of each of the Houses of Parliament. I cannot see from my point of view that this is a reasonable thing to expect.

12.20 a.m.

Lord DONALDSON of KINGSBRIDGE

I am grateful to the noble Lord because I agree with him in what he said at the end; but let me begin by trying to put this clause into perspective. The purpose of Clause 27 is to make sure that the Assembly will have adequate supplementary powers to carry out its devolved functions on such matters as furnishing offices, providing Members and offices with stationery, providing facilities for the media to report debates, and other miscellaneous supplementary matters for which it would be burdensome to create specific powers. This clause has been described as the "paper clips" clause. Clause 27 confers no power on the Assembly to disregard existing law or to impose any burdens on the citizen.

Clearly, such a clause includes power to acquire or dispose of property. But it is in a very remote contingency that this power would be exercised in relation to land. The devolution of powers in the Commissioners of Works Act 1852 ensures that the Assembly can acquire land for the public service. So it does not need Clause 27 for this purpose; it already has the power. In any event, what the clause does not do is provide any power to acquire property of any kind or to restrict anybody's rights by compulsion. If this is what the movers of this Amendment want to stop, they are starting from a false premise. The clause does not give powers of this kind.

The Amendment proposes that if the Assembly wishes to acquire a piece of agricultural land for a supplementary purpose—and to acquire it by agreement with the owner of the land, because it would otherwise have no means of getting it at all—the purchase must be approved by both Houses of Parliament. This is surely unnecessary. We are not talking about compulsory purchase, we are talking about a deal between two bodies. This never requires approval by both Houses of Parliament. I appreciate the concern of the National Farmers' Union in Wales, but I believe that their nervousness is not justified in relation to this clause. I do not believe that there is any danger. I hope I have satisfied the noble Baroness.

Baroness ELLES

I am grateful to the noble Lord for his explanation. I must say that it does not quite satisfy me. He said there would be no burden on the citizen but I do not see from the wording of this clause how the citizen is protected. Can he repeat to me—I may have failed to understand him—that the Welsh Assembly by this particular clause asserting its supplementary powers is given no right to acquire the property of an individual except by treaty?—that is, presumably, by financial negotiation. Would the individual in any circumstances be forced in any way, either through compulsory purchase or possibly at some second stage of the deal by having some planning development put on to his land? It seems to me, that, although in the initial stage it will start with straight negotiation and a man may refuse or may agree to sell at a price to be mutually agreed, there are other methods and administrative measures which the Assembly could no doubt assert which would deprive the citizen of his right not to sell. I should be grateful if the noble Lord could reassure me on this.

Lord DONALDSON of KINGSBRIDGE

I do not find this difficult at all. Under Clause 27, which we are talking about, there is no power to acquire land except by agreement.

Baroness ELLES

I am grateful for the explanation of the noble Lord. I agree with my noble friend that the Amendment as it stood was, perhaps, a sledgehammer to crack a nut. Nevertheless, I think it is an important nut and I think that if people do not take an interest in the rights of the citizen we shall get nowhere. I am grateful to the noble Lord and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29 [International obligations]:

12.25 a.m.

Baroness ELLES moved Amendment No. 70B: Page 10, line 32, leave out from ("instrument") to end of line 34.

The noble Baroness said: Here we are getting into slightly muddy European waters. This is a subject which certainly confuses me, if it does not confuse any other Members of the Committee. The wording in this Bill is not the same as in the Scotland Bill, presumably because the Welsh Assembly does not have legislative powers whereas the future Scottish Assembly will have them. I should be grateful if the noble Lord will help me to clarify my interpretation of this clause. As I understand it, the clause allows the Secretary of State to retain concurrent powers where he considers that community obligations arise; that there is a need for subordinate legislation; and that it is desirable for him, the Secretary of State, to exercise that power rather than the Welsh Assembly.

I do not have to emphasise to the noble Lord that this is a probing Amendment, and I have no intention of pressing it. But on what grounds does the Secretary of State decide that it is desirable for him that the power should be exercised? Surely, the fact of introducing subordinate legislation under European Community legislation, whether through a regulation, decision or some form of general Directive which has to be implemented in the national legislation, is a matter of law. Whereas here, as the clause is worded, it would appear to me that the Minister is having to make a political decision as to whether he should exert the power to implement whatever the Community instrument might be, rather than the Welsh Assembly.

This particular form of option which lies with the Secretary of State is to me a very much stronger ground for conflict and confrontation than if the Minister had an automatic duty and responsibility to implement that particular subordinate legislation which is necessary to honour our Community obligations. Would the noble Lord consider that it is to be on certain legal grounds that he should exercise that power? Who is to decide whether the grounds on which this power is to be exercised are legal or political? I can see here considerable conflict not so much between the Secretary of State and the Welsh Assembly but between the civil servants sitting in the Welsh Office in Cardiff, and the civil servants advising the Welsh Assembly down the road, or wherever it might be, also in Cardiff. As I see it, it will be a rather schizophrenic situation between those who have to decide at what juncture it is desirable for a Minister of the Crown to exert this power rather than the elected body.

We can see certain areas where this is bound to arise, where there will be a certain amount of conflict, because in Schedule 2 there are two aspects where one might need subordinate legislation affecting the devolved powers. One is safety and health. There are a good many safety and health regulations which are beginning to flow from the Community and where, obviously, certain standards are desired to be kept throughout the Community. One would have thought that that was the kind of situation where one would want to keep the same standards rather than have the opportunity of having divergent standards, particularly within the United Kingdom, let alone as between England and Wales.

Another area where there undoubtedly will be continuing regulations of some sort—I mean regulations in the general sense and not in the specific sense of the European Treaty—is in regard to pollution. I should have thought that coastal protection, for instance, is a matter for England and Wales together. This is something where the sea, despite the Wales Bill, will still flow around the coast of England and Wales together, and will not be impeded by this legislation. Therefore, it seems to me that these are the kind of matters where it is essential for an overriding power to be exerted, not in any way to deprive the Welsh Assembly of the right to make decisions which obviously affect its own Welsh interests, but to deal with matters which do affect the nation as a whole and which reside in the Secretary of State.

I would ask the noble Lord how he sees this clause working in fact, and whether he would not consider it advisable, particularly in relation to the European Community legislation, that that should remain in the hands of the Secretary of State and, above all, be controllable by Parliament. Often in our debates on Europe we have been accused of allowing the sovereignty of Parliament to be diminished by European Community legislation. Yet here we are, depriving ourselves not only of the right to discuss certain aspects of the European Community legislation, but of the right to legislate even for part of the United Kingdom by this clause. I beg to move.

12.32 a.m.

Lord GORONWY-ROBERTS

Perhaps it would he helpful if I were to set out as exactly as I can what Clause 29 provides on international obligations. Our basic starting point is the principle that the United Kingdom Government should be, and should be seen to be, finally responsible for implementing all Community and indeed other international obligations. But subject to the protective provisions in this Bill, to which I shall come in a moment, the Government consider that the Assembly should have the power to make subordinate instruments and take executive action to implement international obligations within the scope of the powers devolved to it. That is a more precise definition of the enablement conferred upon the Assembly than the one given by the noble Baroness. It is much narrower, and I repeat: to make subordinate instruments and to take executive action to implement international obligations within the scope of the powers devolved upon it". I hope that is somewhat reassuring. As I said, the Bill contains protective provisions whereby, first, the United Kingdom Government can prevent the Assembly enacting subordinate legislation which involves breach of international obligations and, secondly, the Government themselves can act to implement where they desire to do so.

The way the Bill protects the powers of Westminster to implement international obligations is as follows: Clause 29 itself provides that, for the purposes of implementing such an international obligation, any Minister of the Crown can exercise any ministerial power to make a subordinate instrument, as devolved by the Bill.

Additionally, under Clause 35(2) the Secretary of State can revoke an instrument made by the Assembly if it is incompatible with an international obligation, or indeed if he wants to make his own instruments. A Minister can use his power to implement an international obligation under Clause 29 if three conditions apply. I shall come somewhat later to the grounds the noble Baroness asked me to explore.

The first is, where the power to make a subordinate instrument requires to be exercised in order to implement the international obligation; the second is where the power could be exercised by the Assembly, and the third is where it is considered desirable for the power to be exercised by a Minister. The Minister then becomes entitled to use the power as if the relevant function were not devolved.

That brings me to the more specific explanation of the grounds. The grounds on which he may act are, indeed, any grounds. This is part of the assertion of the paramountcy of the United Kingdom Government. This is a measure to devolve upon a wholly subordinate Assembly certain executive functions and, as such, there are safeguards whereby neglect or accidental oversight of the discharge of certain devolved executive functions can be put right by the action of a Minister. The clause is deliberately drawn widely, and must be interpreted widely, so that the United Kingdom Government, through its Ministers, will be in no way inhibited from taking action in this field to make good a deficiency in the devolved executive function, which I have described, by the Assembly.

It may never be necessary. It may be that the national Assembly of Wales will be impeccable in the discharge of its executive functions; some of us believe that. Nevertheless, it is well that there should be a provision just in case, even in Wales, Homer nods from time to time. The Minister will be able to intervene not just to make good a deficiency, but to initiate action which, for his reasons—and they may be any one of the reasons quoted by the noble Baroness—are good in justification of his action. Fundamentally, this is an assertion of the paramountcy of Parliament in Westminster. It is a protective clause taken with Clauses 34 and 35.

I hope that I have given the noble Baroness and the Committee a fairly clear idea of why this provision is there. She also asked by implication why the Assembly should have any powers at all in this matter. It is true that the Scotland and Wales Bill made a blanket reservation of any matters which involved international obligations. By the way, I rather think that the provision in the Scotland Bill, as it now stands, is as it is in the Bill now presented to the House for Wales. The noble Baroness rather doubted that. My understanding is that the two provisions are analogous. But the former Bill made a blanket reservation of any matters which involved international obligations. However, that Bill also contained a provision enabling delegation of the power and the implementation by order. Thus, the Government have always recognised that in certain cases the Assembly should have the power to make subordinate legislation in a devolved field by being able to implement an international obligation.

We moved from our original proposals because, on further consideration, we concluded that they were too restrictive and could have proved difficult to operate in practice. In our view, provided that adequate protection is afforded to ensure that the Government demonstrably retain not only the capacity for implementing but for preventing the breach of all Community or other international obligations, then the Assembly should be empowered to implement such international obligations.

I apologise to the Committee for taking a little time over explaining the intentions of the clause and the way that it is intended to work, but I thought that the noble Baroness raised important questions. I believe that the protective provisions of this clause and the other clauses which I have quoted—34 and 35—are adequate; that is, the override provisions are entirely suited and comprehensive enough to meet any fears which anybody may have that the powers of Ministers of the United Kingdom Government and Parliament are not sufficiently assured in this proposed legislation.

I hope, therefore, that the noble Baroness will not press these Amendments. She has raised points which have enabled us to explain the intentions of Clause 29 and the other related clauses perhaps more fully than has been done in the past.

12.42 a.m.

Baroness ELLES

I am very grateful to the noble Lord for having taken a great deal of trouble over clarifying many aspects of Clause 29. In particular, as the clause is worded, it is certainly not clear that there is any power of revocation of any instrument.

Lord GORONWY-ROBERTS

The noble Baroness is referring to—?

Baroness ELLES

Clause 35. Taking the three together, this is the effect of the clauses which give to a Minister of the Crown the right, in certain specific situations, to do that. Therefore I am grateful to the noble Lord. With regard to the Scotland Bill and to my remark that the clauses in the Wales Bill are different, there was some debate about this: first during the Committee stage and then during the Report stage when my noble friend Lord Colville of Culross went very deeply into the matter. I believe that the noble and learned Lord, Lord McCluskey, agreed to make some modifications to the Scotland Bill, but I have not seen those changes. I may be wrong; the noble and learned Lord may not have agreed to make certain changes. However, he was certainly considering the propositions which were put forward by my noble friend, which related to a slightly different aspect, since the Scottish Assembly will be a legislative body and different problems will therefore arise. The wording of the clauses will not be identical.

I shall not waste the time of the Committee by debating the Scotland Bill; for the time being, we have enough to do with the Wales Bill. I should like to study very carefully what the noble Lord has said, because there is obviously a great deal of substance in it. I am very grateful to him, and I beg leave to withdraw the Amendment.

Lord GORONWY-ROBERTS

May I respond to one point which the noble Baroness quite properly made. I believe that I half took issue with her about something which I should not have picked up. The noble Baroness and I are absolutely right that the three clauses, taken together, cover every aspect of the Secretary of State's override. The power of the Secretary of State to revoke subordinate instruments, which is the specific point that she raised (where that is the situation in which she needs to intervene), is in Clause 35(2).

Amendment, by leave, withdrawn.

[Amendment No. 70C not moved.]

Clause 29 agreed to.

Clause 30 [Oath of allegiance]:

Baroness ELLES moved Amendment No. 70D. Page 11, line 9, leave out from ("election") to ("he") in line 11.

The noble Baroness said: With the leave of your Lordships, I should like to take Amendment 70E at the same time.

This clause on the oath of allegiance was neither debated during the passage of the Scotland Bill through this House nor when the Wales Bill was going through another place. Despite the hour, I do not apologise, because we are not here voluntarily at this time of night. It is a matter of constitutional importance that this clause should at least be discussed. It emphasises—and we have a duty to emphasise—that there is an oath of allegiance which must be taken by a Member of the Welsh Assembly, who consequently owes a duty to the Crown. Anybody who stands for the Welsh Assembly cannot overlook where his allegiance lies.

There is a difference between the position of a local authority councillor and a Member of the Welsh Assembly, as this clause is drafted. Although a councillor does not have to take an oath of allegiance, he does have to make a declaration of acceptance of office, and has to do so within a definite time period. If he fails to make that declaration within this definite time period, his election is declared void. That is not quite the same as the position of a Member of another place, who, according to Erskine May, is subject to very severe penalties if he should sit or vote without taking the oath, even to the extent of his seat being vacated as if he were dead if he should do this. I say this purposely to emphasise the importance of the meaning of the taking of the oath of allegiance, whether it be to a Member of another place or, as it will be, to a Member of this new Assembly.

There is one difference between the Member of another place and the Member of the Welsh Assembly. The Member of another place who has not taken the oath of allegiance is entitled to certain privileges, but he is not entitled to sit; nor is he entitled to his salary. There is no question, under Clause 30, that a Member of the Welsh Assembly would not be entitled to his salary. However, that may be put into the standing orders if the Welsh Assembly saw fit.

Do the Government consider that this particular clause is limitative, or do they consider that this is merely an outline and that the Welsh Assembly has the right to fill in other commitments, obligations and qualifications with regard to the taking of the oath of allegiance by a Member? One of the difficulties that we have encountered in discussing this Bill is that it is never quite clear whether these are categoric instructions which are limited by the words in the Bill, or whether silence denotes that there is considerable scope for the Welsh Assembly to deal with these particular measures. There is provision for taking part in proceedings only subject to taking the oath. I have said nothing about salary and sanctions. The only sanction is in subsection (2), which is the subject of this Amendment.

We already have the distinction between the local authority councillor and the Member of the Welsh Assembly. I am not trying to equate two separate types of body. One takes the declaration, the other takes the oath, but I think it would be reasonable that nevertheless a time factor should be imposed, because as the clause stands at the moment the Welsh Assembly Member who has not taken the oath of allegiance could indefinitely remain a Member of the Welsh Assembly if the Welsh Assembly so decided.

So long as a decision is made before the expiration of the second month the Member could be entitled to call himself a Member of the Assembly for as long as the Assembly may so decide. I do not think that is right for any kind of body, elected or otherwise. Perhaps two months is the wrong length of time; it may not allow, for instance, for somebody being ill and unable to come and take the oath of allegiance and perhaps one might make it three months. But I think it should be a matter for consideration by the Government that an unlimited amount of time should not be available to a Member without taking the oath of allegiance, and so depriving the electors of the right to representation in that particular body. I beg to move.

Lord DONALDSON of KINGSBRIDGE

This is a perfectly legitimate Amendment and I think that by the time I have finished speaking we shall not quarrel over it. The Government accept that normally Assembly Members should have to take the oath of allegiance within two months of their election. But there may be occasions when there is a good and valid reason why this is not possible, and obviously, for example, illness is one.

The Bill as it stands provides no more than that the Assembly can within the two-month period allow a Member an extension, so that if there is a sustainable reason for delay a Member can put his case before the Assembly. It is not to be expected that a Member would delay taking the oath for longer than was necessary. In the first place, Clause 30(1) prevents him from taking any part in the proceedings of the Assembly until he has sworn his allegiance. Furthermore, under the provisions of Clause 32(4), no Member will be paid until he has taken the oath of allegiance, although once he has so taken it his salary will he backdated to the date of the election.

I think these facts may make it clear that the Assembly would not agree to any licence in this way without good cause, but we feel that if there is good cause, such as illness or something of the kind, it is not a serious thing to allow the Assembly to examine this. After all, the Assembly will consist of Members who have taken the oath of allegiance, who are being paid, who are attending, and it seems to me that they will be people who will be quite hard on those who fail to fulfil these conditions unless there is a good reason; and if there is a good reason I think probably we should all agree that it is desirable that they should give a certain licence to the candidate.

Baroness ELLES

I thank the noble Lord for that reply, which I think has got us a bit nearer, although not quite as near as he or I would like to be. I should like to consider what he has said and see whether there is not some other way of wording subsection (2) so that this considerable latitude which is allowed might perhaps be modified. I quite take his point, and I instanced the case of somebody who might be ill and therefore unable to take up his membership of the Assembly because the second month had expired. There may be some other wording which would restrict the powers of the Assembly to extend the time indefinitely on any grounds whatsoever, which is the situation as it stands at the moment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 70E not moved.]

Clause 30 agreed to.

Clause 31 [Resignation]:

On Question, Whether Clause 31 shall stand part of the Bill?

12.55 a.m.

Lord ELTON

I have one point to raise on Clause 31. I am much impressed by the smooth efficiency with which the clause assumes the precise and alert machinery of the Assembly will click into action upon receipt of the letter announcing the resignation of the Member. But this contrasts strangely with the earlier remarks of the Government when we were debating the provisions of Clause 4, when it was thought necessary to provide very considerable latitude to the presiding officer of the Assembly in the matter of taking notice of the delivery of such information.

Clause 4(3) states that the date of election on the occurrence of a vacancy shall be not later than three months after the occurrence of the vacancy, except that if the vacancy does not come to the notice of the presiding officer within one month of its occurrence the date of the election shall be not later than three months after the vacancy comes to his notice". There is no term set for the period in which that may occur. In the light of what was said in that debate, I wonder whether the noble Lord can at least tell us whether it will be the posting of the letter of resignation that will count as the occurrence of the vacancy, its delivery or its coming to the notice of the presiding officer, and if so, what constitutes coming to the notice. Otherwise it seems to me that there could be a more or less indefinite vacancy.

Lord DONALDSON of KINGSBRIDGE

I think the legal position has always been the same: that the receipt of a letter is the legal indication of what is in it. I have not taken advice on this. The noble Lord is asking whether it is the posting of the letter or the receipt of the letter which will make the resignation effective. My answer, without checking—and I will write to the noble Lord if I am wrong—is that it is the receipt of the letter.

Lord ELTON

I am obliged to the noble Lord, and I expect I may get a letter from him telling me that the receipt is deemed to have occurred within a certain number of days of the posting. His own experience will bear out that this is often an invalid assumption. I could not find a passage in the Bill which I thought I had seen and which covers all these points, including the service of writs and so on. Plainly, it is not in the noble Lord's mind either. This is not a substantial point but it is an interesting one. I await the post with interest when it is delivered.

Lord DONALDSON of KINGSBRIDGE

I only hope it arrives.

Clause 31 agreed to.

Lord ELTON moved Amendment No. 70F:

After Clause 31, insert the following new clause: (" .—(1) If, throughout the period specified in subsection (2) of this section, a member of an Assembly attends neither a meeting of the Assembly nor a meeting of any of its committees or sub-committees of which he is a member he shall cease to be a member of the Assembly at the end of that period, unless his failure to attend is due to some reason approved by the Assembly before the end of that period. (2) The period mentioned in subsection (1) of this section is a period of six months beginning with the last attendance of the member at such a meeting as is mentioned therein.").

The noble Lord said: Of course, we shall again be accused of saying that all the potential Members of this Assembly are idle, devious or in some way undesirable. I can only again reply that I am thinking of them as human beings and not as particularly Welsh, Irish or English. It may not perhaps stretch the imagination too much either to grasp circumstances in which this Amendment would become relevant. Its provisions are, broadly, that if a Member does not turn up he shall, after the lapse of a specified term, be deemed to be no longer a Member. I am not sticking with tenacity to the particular period mentioned in the Amendment; I am again after a point of principle and am interested to see whether it is a point which can be met, perhaps under different terms, after the noble Lord has deployed his well-known persuasive powers for me.

The principle is that if a Member of the Assembly disappears, or simply takes a very prolonged holiday, he really should not hold down the job, keep somebody out of it, leave his electors unrepresented, and draw the salary. We have no further to look than another place; not so long ago, a former Postmaster-General did in fact disappear and there was great concern to know whether or not there should be a by-election, and nothing could be determined until he eventually turned up in, I think, Australia, after a lot of interesting speculation in the Press. The effective result of this was that for many months his constituents were not represented. It seems to me that that is unfortunate and since the circumstances that I describe have already occurred in England—not Wales—with an English Member of the United Kingdom Parliament, I do not see how the noble Lord can in this case tell me that I am saying something derogatory of the Welsh in suggesting that this might happen, because we have already done it. I shall be interested to hear what he has to say. I beg to move.

Lord DONALDSON of KINGSBRIDGE

To everybody's surprise I do not regard this Amendment as derogatory. Perhaps it is the first one I have had to deal with which has not been. I cannot point that particular finger at the noble Lord. As the noble Lord pointed out, the Scotland and Wales Bill made provision similar to the present Amendment for dealing with persistent absence of Assembly Members. That provision was one of several in the Bill which was criticised as unnecessary, and on reflection we found this argument persuasive. We accordingly deleted the provision when the present Bills were drafted.

There is comparable provision in local government for dealing with persistent absence. But we do not consider that this is a matter in which it would be appropriate to follow the practice in local government. The Assembly will be a national body with executive powers. We believe it is right to assume that the Members of the Assembly who will be national figures will act responsibly in carrying out their duties. I am only sorry my noble friend Lord Davies of Leek is not here to confirm what I am saying. After all they will have sought election against tough competition in their own Parties and ultimately against candidates from other Parties. In these circumstances, we judge it more appropriate to follow the practice adopted in the other place whereby the ensuring of attendance will be a matter for the Party machinery in the Assembly and for the local constituency Party to deal with. I hope that, in the light of that explanation, the noble Lord will be satisfied that the situation is better left as it is.

Lord SKELMERSDALE

Surely, if the situation as it was in the other place on the particular occasion to which my noble friend referred had not proved adequate, why should it be any more so in the Welsh Assembly?

Lord DONALDSON of KINGSBRIDGE

I did not quite get the point the noble Lord made. Would he mind repeating it?

Lord SKELMERSDALE

If this provision has been part of our Constitution, whether written or unwritten, as it reflects on the other place, the problems of the ex-Postmaster-General and the confusion that ensued because of his prolonged absence would not have occurred. If it is a fact that this is so, why should there be any objection to enshrining my noble friend's Amendment into the Wales Bill?

Lord DONALDSON of KINGSBRIDGE

There has been one instance only which the noble Lord has quoted which was an embarrassment, but in the other place the Party discipline is entirely effective. If a Member of Parliament fails to turn up, it is not necessary to have legislation to say that he must—the Party which elected him will see to it. We take the view that the Assembly is of that order and that exactly the same thing will work there. Clearly, it would be possible to treat the Assembly in a less dignified way, but it would be quite unnecessary.

Baroness WHITE

I should like to intervene on this Amendment. I have kept quiet throughout this debate for the reason which I gave on Second Reading. This is an insulting Amendment and I hope that the noble Lord, Lord Elton, will not press it.

Lord ELTON

I am sorry, I did not quite catch what the noble Baroness said.

Baroness WHITE

I said that it was an insulting Amendment.

Lord ELTON

I could not believe my ears.

Baroness WHITE

That is what I am saying. I think that, with the exception of my noble friend Lord Goronwy-Roberts, I am the only Welsh person present, and in my view this kind of Amendment is not called for. After all, the Members of the Assembly—as my noble friend Lord Donaldson of Kings-bridge said—will, we hope, be people of some stature, and it is really for the Assembly and for its constituents to exert the sort of pressure which could be necessary in exceptional cases. The one particular exceptional case which has been mentioned was so exceptional that it is not really an adequate basis for legislation.

Lord ELTON

I am absolutely astonished by that intervention. I really am surprised and regret that the noble Baroness, Lady White, finds this an insulting Amendment, when even the noble Lord, Lord Donaldson of Kings-bridge, said that for once it was not even derogatory, let alone insulting. The noble Lord, Lord Donaldson, has drawn our attention to the immense efficacy of the Party machine in the House of Commons. But the example that I am quoting is an example of an occasion when it totally failed to work.

Let us give it not two months but three or four months to work, but if it does not work it will be of no benefit to the Welsh electors to remain unrepresented for an unspecified length of time which may be as long as it takes to accept the proof of death, because there is no evidence of survival. I do not know how long it takes under an insurance policy, but I assume that it would be the same for the Assembly. It would not be able to legislate on this because it is not a legislative body.

Our own Parliament became muddled over this not so long ago and there was no way that it could find to get over the situation. I suggest that there is a way—it may not be that set out in the Amendment—and it might do something to allay what in my view is the unfounded feeling of affront that has been voiced by the noble Baroness, Lady White: we could put some power into the hands of the Assembly to make its own regulations on the subject. At present, as I read Clause 15—which is the clause under which the Assembly makes its own standing orders—it is entitled under subsection (3) to make orders which include, provision for preserving order in the proceedings of the Assembly, and any standing order made by virtue of this subsection may include provision for excluding a member from such proceedings". That does not answer the case, but if the Assembly can keep somebody from taking part in the proceedings when he is around and known to exist, it would not perhaps be such a very great departure from what is already in the Bill and would be regarded as not insulting but perfectly workable by notable Lords and Baronesses on the other side of the House if one extended the power so as to allow the Assembly to declare that at a certain point in time the Member was no longer a Member by reason of his absence.

If we put that responsibility into the Assembly's hands, if we give it that power which is not yet there, if it is prepared to use it on its own behalf—and the noble Baroness and others will accept that, if it does it itself, it must do it on its own behalf—perhaps that will allay the suspicion that when we do it we are doing it in some extraordinary sense which quite escapes me, against the Assembly. Would that be the answer? I think that the problem could arise and it seems absurd when we make a law of this sort once in 150 or 200 years that one should not provide for the unexpected when it has already happened once quite recently.

Lord GORONWY-ROBERTS

The noble Lord expressed surprise that my noble friend Lady White expressed what quite a number of us felt—namely, that this was indeed an insulting Amendment. If it is so important for the Wales Bill, would the noble Lord explain to me and the Committee why no move was made during the prolonged discussions on the Scotland Bill for a similar provision to be put into that Bill? If the arguments for insisting on these provisions in the Welsh connection are so strong, why were they totally absent in the case of Scotland? Are they two different peoples of different categories of responsibility and ability? The answer is obvious. He has selected Wales for a little Amendment which is not only unnecessary but which will create a considerable amount of resentment in Wales, especially as it was not counter-parted during the discussion of the Scotland Bill in this House.

Lord ELTON

I am greatly obliged to the noble Lord for illuminating something for me which I had not understood. To that extent, I moderate what I said to the noble Baroness, Lady White. The noble Lord suggested that the treatment of the Scots and the Welsh is different because they are different people.

Lord GORONWY-ROBERTS

The noble Lord by his action today, which is not counterparted by any action he took during the passage of the Scotland Bill, is implying that there is a difference—a pejorative difference.

Lord ELTON

I absolutely take the noble Lord's point; I was trying to reply to it. He says that the implication is that one would trust the Scots—though I do not think trust enters into it—and not the Welsh. The answer is, of course, that, although I am taking a leading part in the Wales Bill, I was not involved to any considerable extent on the Scotland Bill, and I cannot be in two places at one time or run two Bills at once. Had I been, this is something that would have occurred to me.

However, I see that what the noble Lord says could have force. I think that the extent to which it had force would really be the extent to which he and his friends made use of the circumstances. If they were to say to the Welsh, "Look, there is this provision to protect your electorate from absenteeism among your representatives and there is no such protection for the Scots electors", they would think that they were being better done by. If he said, "There is this provision to guard against your representatives being absent and unreliable whereas the Scots can be trusted", there would be grave resentment. That is the danger of all political advance, is it not?—that it can be interpreted in one way or another.

My view is that I have advanced this Amendment in good faith in order to obtain the reaction of the Committee. The reaction on the other side of the Committee has been a great surprise to me, very illuminating and not at all what I expected. I feel that this is a provision which ought, in fact, to exist not only in Wales or in Scotland but also at Westminster. It would have been a very good thing had it existed however long ago it was that Mr. Stonehouse went absent and the Party machinery did not work. But I would be the last person to wish to precipitate the kind of unpleasantness which the noble Lord, who I know never speaks in malice, says would arise from such an Amendment. In any case, I would not wish to press it at this stage because it is a principle that needs to be looked into.

But I do wonder whether the noble Lord does not agree with me on this. If the circumstances were different, if the Scotland and Wales Bills were going, as it were, side by side down the road and the provision was in each, and if, indeed, the opportunity arose for it to be provided for Westminster as well, and that opportunity was taken, would this still be such a bad thing or would it not be rather a sensible provision? I should like to hear that before I withdraw the Amendment.

Lord GORONWY-ROBERTS

If I may answer the noble Lord, I take exactly the same view as my noble friend Lady White. She put it in a nutshell. As we do in Westminster, as we do in regard to the Scottish Assembly, so let us do in regard to the Welsh Assembly, and let the Members of that Assembly, in conjunction with the grass-roots feeling—the ultimate sanction of democracy—govern the deportment, the behaviour and the assiduousness of the elected representatives. Like her, I see no reason why any one of those three elected bodies should be subject to this kind of proposal. But if any one of them is, then the other two should be. I do not think that any of them should be. I am rather surprised that, of the three, the noble Lord should select the Welsh Assembly.

Before I sit down, may I, in the best possible spirit, convey this to Members on that side of the Committee. I have listened to the discussions on a great many Amendments in which I have not taken part. There is a perceptible tendency to regard the Welsh people and their potential representatives in the Assembly as being somewhat in a separate category from those in Scotland or in any other part of the country. My noble friend Lord Harris put it very well when he said that we must stop this "nannying" of the Assembly, otherwise we may unwittingly evoke in Wales feelings that it is not the purpose of any part of this House to produce.

The position in Wales at the moment is one of moderation, of keen participation in the general business of the United Kingdom, and within that Union to seek a reasonable and effective form of devolution. One of the ways in which that might be transformed into a much less reasonable and more intractable attitude is to go on with these innumerable Amendments, most of them unnecessary, some of them by implication insulting, like this one, thus creating in Wales, unwittingly, I am sure, exactly the kind of feeling that I would hope it would be the common purpose of all Parties, of all Members of this House, and indeed of Parliament, to avoid.

1.16 a.m.

Lord ELTON

What the noble Lord has said is extraordinarily interesting, and I think useful. I do not think that we want to be drawn by him into a second rebuke on the question of drawing the Committee once more into a Second Reading debate, but it is worth making again one point which it is all too easy to lose sight of, particularly by those who in Wales are watching the progress of this Bill through this House, and subsequently through another place. I had been at pains to make this clear before. Your Lordships will well know, but not everybody does, that our function is one of revision, and that the function of an Opposition is to bring into the open issues that need to be discussed by means of Amendments which bring those issues out. If every Amendment is to be treated when it is a probing Amendment, as this is, as though it is an attack upon the sacred central ground of the Welsh Assembly, which is seen as the shrine of all that is Welsh, then of course there is bound to be resentment. But the process of this House requires that we should examine the questions.

I myself regard the sanctuary of all that is Welsh as residing in the bosoms of the Welsh people. I think they deserve the best Assembly we can give them. I do not agree with noble Lords opposite about what that may be. But it is not an assault upon the Welsh in the form of their Assembly; it is an attempt to use the Parliamentary procedure to see that that is properly discussed and drawn in a form which this House and another place between them agree is the best we can get, and it is then up to the Welsh people themselves to decide what that shall be. This applies to Amendments which are moved and withdrawn, which are very numerous—they are less numerous in this Bill than in the Scotland Bill, or in many others—because if the job is to be properly done then they must be numerous.

The other and much more difficult point to convey is something I said at Second Reading. I declared at the beginning that we must send Amendments to the other place which might not be acceptable but which would serve the purpose of enabling the other place to express an opinion for the first time on large areas of the Bill. If the noble Lord will bear that in mind, if he agrees that the temple of Welsh culture and its heritage and history is in fact in the traditions and nature of its people, then perhaps he will think of me less hardly. I take everything he said in good part. I have the greatest regard for him. I ask him to accept that I am trying to do an honest job honestly on behalf of my noble friends. If it gives offence on occasion I regret it, but I think the offence should be taken against me rather than against the institution I am trying to serve.

Lord DONALDSON of KINGSBRIDGE

Before we finish this discussion I would say that of all the Amendments we have considered, and there have been a great number, probably this has been the simplest, and one which required the least discussion of all. I think it is absolutely wrong—and I agree entirely with my noble friends Lady White and Lord Goronwy-Roberts—that the suggestion that a particular rule should be applied to the Welsh Assembly could be taken as offensive. This is such a simple thing that I do not think it is worth the discussion we have given it. It seems perfectly clear that the right thing for the noble Lord to do, if I may say so crudely, is to come off it and leave it at that.

Lord ELTON

I do not know whether or not this is a Parliamentary process; what I call it is withdrawing the Amendment, and that I beg leave to do.

Amendment, by leave, withdrawn.

Clause 32 [Remuneration]:

1.21 a.m.

Lord ELTON moved Amendment No. 71: Page 11, line 17, leave out from ("to") to end of line 20 and insert ("a member of the Assembly the salary and allowances for the time being paid to an Assistant Secretary in the Home Civil Service in his first year in that grade.").

The noble Lord said: I suppose all the same things will be said; but we have said them, so let us leave them unsaid. Again I suppose, because this has not been applied elsewhere, it will be taken as being applied to the Welsh because they are Welsh and are not Scots or English. It is a ballon d'essai. We wish to consider the difficulty into which elected bodies responsible for their own salaries, as it is intended under this clause they should be, get themselves in the face of their electorate, a difficulty which is felt by another place and this House. The Committee might like to consider at the same time Amendments Nos. 72 to 77, which provide another approach to the same problem.

There are two. One is to remove the responsibility from the Assemblymen of voting their own salaries and place it instead in the hands of a higher authority. I am sorry that some of our Welsh colleagues are not here to discuss this, but it is my clear impression from my conversations in Wales that there is a widespread feeling among the Welsh that they do not want the Assembly to be responsible for fixing its own salaries, and indeed pensions. I should have thought that if I was right in my assessment, this again would not be derogatory, because it is a curtailment of the rights of the Assembly; it should rather, be flattering in that it is a defence of the rights of the Welsh electorate who find the funds out of which the Members are paid.

There are two ways out of the difficulty. One is to hand the assessment and decision to a higher authority, which of course cannot be done in another place but can be done here, in the case of the Welsh Assembly, and the other is to tie the salary to some existing scale, so that once that has been done the difficulty of asking for a rise from the electorate, at a time, for instance, when one is preaching restraint in wage demands, is overcome. It is a perennial difficulty in Parliamentary institutions and it seems to me that the proposal in Amendment No. 71 might be an acceptable answer.

We do not necessarily have the right figure, and of course we need to know—I hope the noble Lord will tell us—what will be the workload of the Assembly and of a typical Assemblyman. If we accept literally all that has been said about this in the past, and the Assembly is merely discharging the functions hitherto discharged by the Secretary of State, it would be logical, though I do not doubt not acceptable, to divide the salary of the Secretary of State equally among the Members of the Assembly; but I do not propose that. On the other hand, there must be some point which is suitable; maybe it is somewhere halfway between the remuneration—or average receipts, because it is not a remuneration—of members of a county council on the one hand and of Parliament on the other. But having established it, it would be useful to tie it to the salary of an identifiable grade in part of the Civil Service.

This is a device which deserves discussion, and if it can be discussed outside the acrid area in which we feel that we cannot discuss anything for Wales which is not already embodied for Scotland, the United Kingdom, or England, that would be to advantage, because no doubt we shall return to the subject on other occasions in relation to other parts of the United Kingdom, and we shall then have cleared our minds on an important principle. I repeat that there is strong feeling in Wales on this matter, and I think that on the whole it sympathises with the objective of taking this decision out of the hands of the Assemblymen. I beg to move.

The DEPUTY CHAIRMAN of COMMITTEES

I have to advise your Lordships that if this Amendment is agreed, I will not be able to call Amendments Nos. 72, 73 and 74.

Lord DONALDSON of KINGSBRIDGE

I do not want to be nasty to my noble friends opposite. I do not want to go on saying how awful they are in what they are saying about Wales. However, the Government suggest that the Assembly, after assuming its position and looking at the work it has to do, should have the right to fix its own salaries, and this is a much more complimentary approach than that contained in the Amendments of the noble Lord. I do not put the matter any worse than that. I do not wish to say that the noble Lord is insulting the Welsh. I merely think that he is not being nearly as polite to them as I am, which is a slightly different point.

We believe that the Assembly should have as much freedom as possible in deciding its procedures and other operational matters. In accordance with this policy, Clause 32 provides that once the Assembly is established it will assume responsibility for determining the salaries and allowances and pensions of its own Members, just as the determination of those of Members of Parliament is a matter for Parliament. Similar provision is made in Clause 32 of the Scotland Bill. Our policy is that we do not think that it is appropriate or necessary for the salaries and allowances of Assembly Members to be either fixed by the Bill (as Amendment No. 71 provides) or controlled by Westminster, as the other Amendments provide.

The remuneration of Assembly Members will be determined, at least in part, by the working hours to be adopted by the Assembly and the regime required of Parties in the Assembly. These considerations will have a bearing on whether the Assembly is to be full-time or part-time, although these terms are ambiguous. The real issue is probably whether it is to be possible for an Assembly Member to live on his pay, or whether other income-earning activities are to be the rule. The Assembly will have responsibility for a wide range of important matters affecting Wales, and it would be out of keeping to deny it responsibility for fixing the salaries of Members. Welsh public opinion can be expected to play a crucial part in influencing the Assembly's decision.

In so far as the noble Lord is correct in saying that many people are concerned about this question, I would say that they will have the opportunity to express their concern and to ensure that Assembly Members do not over-pay themselves. The Government recognise that they will have to set the initial salaries, and that this will have to be done in good time for the first elections, since potential candidates will need to know the likely level of remuneration. This cannot be done until the result of the referendum is known and the draft of the first commencement order has been laid before Parliament and approved. The Bill provides that the Secretary of State should direct what the initial salaries should be without reference to Parliament. This is in line with the Government's philosophy that decisions on Members' salaries are properly for the Assembly, and that Parliament should not be involved in what is essentially an internal matter for the Assembly. However, in taking a decision on what the initial pay of Members of the Assembly should be, the Government will of course take into account the views expressed in Parliament and elsewhere.

Amendment No. 71 would provide that an Assembly Member should receive a salary of about £10,000 plus such allowances as are payable to Assistant Secretaries in the Civil Service. These allowances would cover travelling and other expenses necessarily incurred in duties undertaken. I am in no position at the moment to say whether this would be an appropriate salary, but I would only point out, modestly, that the basic rate proposed is considerably in excess of that which the Members of the other place see fit to pay themselves. Amendments Nos. 72 to 77 adopt an alternative approach to Amendment 71. They propose that all payments to Members and former Members should be fixed by the Secretary of State in an order subject to Affirmative Resolution by the other place. The Government's objection to both approaches is the same: we think that this kind of provision is unnecessary. In our view, these are matters on which only the Assembly can decide in the light of its own experience and in the light of Welsh public opinion. That is why we propose in the Bill that the Assembly should fix the salaries and allowances to be paid to its Members and the pensions to be paid to its ex-Members. I cannot believe that the noble Lord opposite will differ very much from this. It seems to me the proper way to deal with it, and I very much hope that he will accept what I have said.

Baroness VICKERS

I have been very interested, listening to the noble Lord. I agree with him that perhaps it was unwise to put down this Amendment, but I think he must admit that here the noble Lord, Lord Elton, has given very high praise to the qualities and the efficiency of the proposed Members, because he is proposing to give them this very high salary which, as the noble Lord has said, is more than equivalent to what is being received in the English Parliament. So here we have the noble Lord, Lord Elton, giving very good praise—not insulting the Welsh—by suggesting this remuneration. I think the noble Lord opposite could perhaps be gracious enough to see that Lord Elton is not always putting the Welsh down. In fact, he is putting them up on a very high level this time.

Lord DONALDSON of KINGSBRIDGE

I try to practise graciousness above all things, and I am perfectly prepared to admit that, though some people might think that it is an overpayment, nevertheless it is not an insult to the Welsh Assembly.

Baroness ELLES

Perhaps I could join in this, particularly if the noble Lord opposite is in a gracious mood. I shall enjoy even more talking across the Table to him. With regard to this Amendment, I think there are one or two points that could be considered. If I have understood it correctly, it is the Secretary of State who will lay down the initial salary; so it is not in fact very relevant to say that the Welsh Assembly itself must decide its remuneration, because presumably—there is no doubt an answer, but perhaps the noble Lord would allow me to finish—the Secretary of State will give a figure so that whoever it is standing for Carmarthen, Caernarvon, Cardiff, or wherever it is, will know that he will get an income of roughly £X—"Will I be able to afford to do it? Will I be able to afford to give up the job I am doing?", et cetera. They will obviously have to have some initial sum to start off with, but after that, once they have all got together, presumably, they will decide, "Is it a good sum to have? Shall we put it up, or shall we put it down?".

One of the things which, never having been a Member of another place, I have never had to suffer, but which seems one of the great disadvantages of another place with regard to their own salaries, is that it always becomes a matter of political football. Everybody knows that they are far too underpaid for the duties and work that they have to do and the time they have to spend; and there are all sorts of factors which prove that they are grossly underpaid. If, on the other hand, people like to give themselves exactly what the part-time chairman of the Eggs Authority gets, well and good; but I do not see why one should inflict that kind of self-denigration on a new body. We should give them a chance to get a proper salary, more in keeping with the kind of duties one expects them to fulfil. I should have thought that the noble Lord would have been thankful that this side of the Committee has put forward a positive proposal, we always being told that we never put forward any good suggestions. I hope the noble Lord will continue to be gracious and will thank us for having put a positive proposal that the Members of the Welsh Assembly, at least, should be better paid and have a better realisation of their work for the people of Wales than the Members of the House of Commons have for their work for the people of the United Kingdom.

1.35 a.m.

Lord DONALDSON of KINGSBRIDGE

I have no serious comment to add to what the noble Baroness has said. I believe that the Welsh Assembly, when it has decided what kind of work it has to do, is the proper body to decide its salary, just as I believe the other place should decide its own salary. The fact that there are political pressures on them to keep it down is a fact of life. I think that the idea that we should sail in from outside and put right what is wrong is an absolutely absurd idea. Quite honestly, if we are going to make the Welsh Assembly something which really governs in Wales, which is what we are trying to do, it must surely have the final word on what it pays its Members. I cannot believe that anybody would think it should be done by anybody else.

Of course, the Secretary of State must have a starting figure and the starting figure discussed has been the same figure as the other place. I do not know whether that is what he will do, but that is the figure that has been discussed and is quite acceptable. I cannot see that it is desirable to give them either more or less than somebody else. Surely, they must decide their own. I cannot believe that noble Lords opposite will not agree.

Baroness ELLES

I hope that the noble Lord is aware that many countries in Western Europe do, in fact, follow that practice. They tie the salaries of their Members of Parliament to the highest paid civil servant of their Administration. It therefore takes out the political element from the discussions and ensures that people who are serving their country are paid an adequate salary. In France, Members of the National Assembly are paid the same as the salary drawn by the equivalent of a Permanent Under- Secretary of the Foreign Office. I say that merely to show that it is accepted practice in other countries. There is no reason, because it is not the practice in the other place, why it should not be practised in another body.

Lord DONALDSON of KINGSBRIDGE

This is not what we are talking about. We are talking about not what the Members shall get, but who shall decide it. Clearly the Welsh Assembly are entitled to say that they will all be paid as Under-Secretaries or anyone else. We are not discussing at all what figures should be, but who should decide. I feel certain that in the end noble Lords will agree with me that the people who should decide this should be the Welsh Assembly.

Lord ELTON

I do not think that we can usefully go on longer with this. I think that we have spent our time to some purpose. We have elicited the intention of the Secretary of State as to the initial salary, which I was not aware of. We have exposed a fundamental reason for resentment among the Welsh whenever there is a departure from the standard set by the Scotland Bill, which many of us were not aware of; and we have considered a method of fixing salaries which might commend itself to the future Members of the Welsh Assembly (if the Bill is as amended when it reaches them) which they might like to follow; for it will get them out of difficulties later. We have all become rather tired. I hope that we shall not become crosser than we have become. I feel no malice towards others who have told me that I have been insulting. I hope that they will feel tomorrow that I have not been insulting in what I have said—or, at least, not with malice. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 to 77 not moved.]

Clause 32 agreed to.

Clause 33 [Jury service]:

On Question, Whether Clause 33 shall stand part of the Bill?

The Marquess of TWEEDDALE

Before the Question is put, we have heard a lot tonight about matters raised on the Wales Bill which have not been mentioned on the Scotland Bill and how insulting they have been. I consider, as a Scot, that we have been insulted now. There is something in the Wales Bill which was not contained in the Scotland Bill. It relates to the jury service. It says: 33.—(1) In Part III of Schedule 1 to the Juries Act 1974 (excusal of certain persons from jury service) after the entries under the heading "Parliament" there shall be inserted—

"Welsh Assembly Member of the Welsh Assembly." (2) A member of the Assembly shall not be liable to serve on any jury in Scotland. I think it would be an insult to ask a Welshman to serve on a jury in Scotland. I suggest that all this is deleted as it does not apply the other way round. No Scots Assembly Member is banned from sitting on a jury in Wales.

Clause 33 agreed to.

Clause 34 [Power of Secretary of State to prevent or require action]:

Baroness ELLES moved Amendment No. 77A: Page 12, line 6, leave out from ("would") to second ("or") in line 7 and insert ("affect, directly or indirectly, any matter with respect to which the Assembly has no power to act").

The noble Baroness said: This is a rather complicated point. A similar point arose when the Scotland Bill was debated. I should like to take Amendments Nos. 77A, 78B and 80B together. I will say at the outset that this is a point which the Government conceded when it was very ably argued by my noble friend Lord Colville of Culross. As the Wales Bill stands, it appears to me that the Secretary of State has no override powers in relation to cross-Border subordinate Instruments—that is, any subordinate Instrument which deals with Wales but which could have an effect on another part of the United Kingdom.

This was the case in the Scotland Bill which was drafted in precisely the same way as the Wales Bill now is. The Government accepted Amendments in paragraph 8 of Schedule 2 which affected paragraph 2 of Schedule 2. In fact, the effects of paragraph 2 of Schedule 2 were negatived by an Amendment which was put forward by the Government in regard to the Scotland Bill and an addition to Clause 36(2) was also added in that Bill.

The effects of these two Amendments were basically that Scotland had responsibility for legislating only for matters which were entirely within the Scottish borders. As the Wales Bill now stands, the Welsh Assembly can pass a subordinate Instrument which could have effect on matters which affect the United Kingdom as a whole, England or Scotland, and the Secretary of State under Clauses 34 and 35 would have no override powers.

I accept that the Amendments may not be correctly drafted. I think that this is a very difficult area. There is no Schedule to which to relate these clauses, as there was in the Scotland Bill. I should be grateful if the noble Lord could reply or give an undertaking to look at this matter. I think this is something which could justifiably be put right, either at this or a later stage of the Bill. I beg to move.

Lord DONALDSON of KINGSBRIDGE

I think that it is worth mentioning that Amendments similar to those put down by the noble Baroness were put down by the official Opposition in the other place at Committee Stage on this Bill, were debated for two and a half hours and were rejected on a Division by a margin of 37 votes. I throw this in for good measure in any discussion that we may have. Hansard for 8th March records it.

The Amendments which we are discussing cover three themes. The first is to return to the rather wider formulation of the override power as it appeared in the Scotland and Wales Bill; the second is to remove the reference to "might affect" from the conditions precedent to the use of the power (though the noble Baroness has omitted to table an Amendment to remove this reference from Clause 34(1)(b)); and the third is to delete that part of the second condition precedent to the use of the power in Clause 34, which requires the Secretary of State to take account of the public interest. The noble Baroness seems to be content, however, that the public interest should be taken into account before overriding a statutory instrument by use of the power in Clause 35. I think it might be for our convenience if I were to take each of these themes in turn.

Apropos of the "English dimension", the Government changed the structure of the policy override clauses from that of the Scotland and Wales Bill for the reason explained in a statement made by the Lord President of the Council in July 1977, which was conveyed to your Lordships by the noble and learned Lord, the Lord Chancellor. The Government do not think it necessary to provide a power of policy override in respect of possible repercussion on what might be termed the "English dimension" of a devolved matter. One of the merits of devolution is that it will allow reasonable diversity within the continuing unity of the United Kingdom, and the Government do not consider that there should be a power of policy override merely because an action of the Welsh Assembly in a devolved area might be inconvenient for the United Kingdom Government of the day. In their view, policy override should be kept in reserve in case it is needed to protect matters which lie at the heart of the continuing unity of the United Kingdom, such as defence, trade, energy, the economy and industrial policy.

That is the intention. But there were representations that the override clauses in the Scotland and Wales Bill went too wide, in that the reference to a matter with respect to which only Parliament has power to legislate would, in fact, include the "English dimension" of a devolved matter. This would be an unwanted effect and the formulation has therefore been changed to ensure beyond doubt the exclusion from the override power of repercussion on the "English dimension" and make it bite only on the more important area of matters, such as defence, and so on, for which there is no devolved responsibility. That is why the Government find unacceptable these Amendments which would restore the earlier concept of any matter with respect to which the Assembly has no power to act". The formulation of background powers of the kind we are discussing is a question of balance. In my submission, the Government in these two clauses have got the balance right—as appears to have been accepted in relation to the Scotland Bill—and I hope that in the light of what I have said the noble Baroness will see her way not to press this Amendment.

Baroness ELLES

I am grateful to the noble Lord for that explanation. In fact, the position seems to be rather worse than I envisaged it, because I was not aware that the United Kingdom Parliament now will be stopped from discussing certain matters with regard to Wales, but that the Welsh Assembly will be able to pass subordinate Instruments which have an effect on parts of the United Kingdom, and there is no action that the Secretary of State for the United Kingdom Parliament can take.

If I may, I should like to study what the noble Lord has said. I hope, in the meantime, that he will take on board the points I made, regardless of the drafting of the Amendment, because I am particularly concerned with this matter of cross-Border subordinate Instruments over which there is no overriding power at the moment for the Secretary of State. I should be grateful if the noble Lord would look at this and perhaps write to me before the next stage of the Bill. On that undertaking, I beg leave to withdraw the Amendment.

Lord DONALDSON of KINGSBRIDGE

I should like to add that we regard this as an important matter, and I shall be happy to do so.

Amendment, by leave, withdrawn.

1.50 a.m.

The LORD CHANCELLOR moved Amendment No. 78:

Page 12, leave out lines 8 to 10 and insert— ("(b) that any action capable of being so taken is not proposed to be taken and that failure to take it would or might affect a reserved matter, whether directly or indirectly;").

The noble and learned Lord said: During the Committee stage on the Scotland Bill, the noble Lord, Lord Drumalbyn, moved a drafting Amendment to the then Clause 36, and my noble friend and learned friend Lord McCluskey agreed to consider that. As a result, a Government Amendment was put down and, I believe, was agreed to Clause 37 of the Scotland Bill. The same point applies in relation to Clause 34 of this Bill, and the present Amendment is identical to that in the Scotland Bill.

With this Amendment, the Government consider that it should now be clear beyond doubt that Clause 34(2) would provide, as was always intended, that the Secretary of State can, subject to the public interest, first, override action which would have a detrimental effect on a reserved matter and, secondly, require action where failure to take it would have a detrimental effect on a reserved matter. The essence, in both cases, is prevention of a detrimental effect. I beg to move.

Baroness ELLES moved Amendment No. 78A: Page 12, line 11, leave out ("in the public interest").

The noble Baroness said: This Amendment was meant to arouse a certain amount of debate as to the definition of "public interest", how the power would be used, on what criteria the Secretary of State would decide whether or not something was in the public interest, and whether the main consideration would be for the people of Wales or for the United Kingdom as a whole. But at this late hour it is not the time to discuss the finer points of public interest.

I merely make a marker with regard to this, that the Secretary of State will have to use his discretion—presumably, this will be a discretionary matter—as to the meaning of "public interest" in this case. Or does the noble and learned Lord consider that there are certain legal grounds, on which the Secretary of State must base his decision that a matter is in the public interest, which must guide him to use his powers under the subsection? I shall be grateful if the noble and learned Lord will comment on that. I do not propose to have a debate on this, though it is a matter of public interest not only for the people of Wales, but also in regard to the exercise of the powers of the Secretary of State. I beg to move.

The LORD CHANCELLOR

I do not think it is possible to give a precise definition in advance of how the Secretary of State would interpret "public interest", though the words are well precedented in Statute. But we think it is useful for the term to be included, as it means that the Secretary of State need not take action if he thinks that it would not be in the public interest to do so. The important point is that the Secretary of State will have to justify the use of these powers to Parliament. Before he decides to intervene, he will need to satisfy himself that he has a convincing case for doing so, and a case that will be approved by Parliament. I am afraid that I cannot take it further than that, but it is a well-known conception.

Baroness ELLES

I thank the noble and learned Lord for that. Of course, we are aware that it is a very well-known concept, but it has never been very clearly defined. Though the noble and learned Lord said that it would have to be approved by Parliament, are the overriding powers always the subject of an order?

The LORD CHANCELLOR

I think that probably more in a political sense it will have to be approved by Parliament. He is always in danger of getting the sack, unless he carries Parliament with him.

Baroness ELLES

I am grateful to the noble and learned Lord for that valuable piece of information. So I hope that Secretaries of State will be careful, when they exercise their powers in relation to the public interest. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78B not moved.]

1.54 a.m.

Lord ELTON moved Amendment No. 79: Page 12, line 42, leave out from ("Parliament") to ("and") in line 1 on page 13.

The noble Lord said: Clauses 34 and 35, taken with Clause 71, provide for the procedure by which instruments which are approved by another place, and not approved by this place, can be enacted by the vote of the other place alone. The noble and learned Lord was kind enough to write to me at the beginning of these proceedings and say that it was no longer the intention of the Government to proceed with this feature of the Bill, which has nothing whatsoever to do with Wales; and if there is any insult intended it must be to this House. Therefore I have tabled Amendments in the terms which the noble and learned Lord suggested, which take out this provision. I do not think that your Lordships wish to be treated to an inept lecture by me on the constitutional significance of this matter; your Lordships are well aware of it. As I understand that the Amendment will not be resisted, I think that we can dispose of it quite quickly and with a sense of gratification and fellowship with the noble Lords opposite.

The LORD CHANCELLOR

These Amendments flow logically and with consistency from the consequences of the defeat of the view taken by the Government of the matter on the Scotland Bill. As I indicated at Second Reading, so far as this House is concerned the Government are therefore prepared to accept these Amendments. Accordingly, at this late hour we do not need the privilege of a discourse by the noble Lord, Lord Elton, on the constitutional position—illuminating at another hour, and possibly even in another place, though that would be.

Lord ELTON

Perhaps it would be for the convenience of the Committee if I mentioned that I omitted to say that the grouping appears to be Amendments Nos. 79, 80, 81, 82, 83 and Clause 71. Then, when we come to these, I need not discuss them. I noted with interest what the noble and learned Lord said. I agree entirely with him about any discourse by me not being illuminating under these circumstances. I noted also with interest the emphasis the noble and learned Lord placed on the words "so far as this House is concerned" the Government do not intend to proceed. I shall look with interest at Hansard of another place when the Bill goes back to them. I beg to move.

1.57 a.m.

Lord ELTON moved Amendment No. 80: Page 13, line 2, leave out ("the House of Commons") and insert ("either House").

Clause 34, as amended, agreed to.

Clause 35 [Power of Secretary of State to revoke subordinate instruments]:

[Amendments Nos. 80A and 80B not moved.]

Lord ELTON moved Amendments Nos. 81, 82 and 83:

Page 13, line 29, leave out from ("Parliament") to ("or") in line 32.

Page 13, line 40, leave out from ("Parliament") to ("and") in line 41.

Page 13, line 42, leave out ("the House of Commons") and insert ("either House").

Baroness ELLES moved Amendment No. 83A: Page 14, line 5, leave out subsection (7).

The noble Baroness said: This Amendment relates to Clause 35(7). It deals with the matter of hybrid instruments, which was debated during the proceedings on the Scotland Bill. As a result of the Amendment which was introduced by my noble friend Lord Colville of Culross and a favourable answer from the Government, I understand that that subsection was removed from the Scotland Bill. I do not propose to go through all the arguments, unless noble Lords wish me to do so. I should be grateful for a hopeful reply from the noble and learned Lord on this subsection.

The LORD CHANCELLOR

The Government are willing to accept this Amendment.

Clause 35, as amended, agreed to.

Clause 36 [Requirement of consent]:

2 a.m.

Lord STANLEY of ALDERLEY moved Amendment No. 84:

Page 14, line 21, at end insert— ("or (c) agricultural land").

The noble Lord said: This Amendment is designed to protect against the wasteful acquisition of agricultural land. Under this clause the Assembly is required to seek the consent of a Minister of the Crown before compulsorily purchasing certain types of land. The Welsh Assembly, for example, under Clause 36(2)(a), may not compulsorily purchase land held by, say, the Electricity Board. Under Clause 36(2)(b) it may not compulsorily purchase land held under, for instance, the smallholding scheme or by a local authority approved dogs' home, or slaughterhouse or drug house. Quite why the Welsh Assembly would want to compulsorily purchase a slaughterhouse or drug house, quite frankly, escapes me. Nevertheless, as I understand it, if it wants to do so it must seek the consent of a Minister of the Crown.

The one thing that the Welsh Assembly really might want to purchase compulsorily is agricultural land. That is the one thing they can do so easily, and without the consent of a Minister of the Crown. If I were a member of the Welsh Assembly I think that I would do the easiest thing—we are all human, anyhow—and compulsorily purchase agricultural land. Therefore, to make it fair, I believe that before so doing the Assembly should seek the consent of a Minister of the Crown. Certainly this clause seems to me to encourage the Welsh Assembly to take agricultural land. I need hardly add that any land taken should be looked at once, and then once again. I beg to move.

Baroness STEDMAN

Where the land is to be acquired for devolved purposes, the Assembly will be responsible for making its own compulsory purchase orders for a limited range of purposes, and for confirming compulsory purchase orders made by local authorities and other bodies, for a wider range of purposes. For instance, the Assembly will have the power under Section 113 of the Town and Country Planning Act 1971 to acquire property for the devolved public service; for example, offices for civil servants working on devolved functions. The making and confirming of compulsory purchase orders will be reserved unless the specific powers have been devolved.

It is, of course, possible that compulsory purchase orders made for devolved purposes will nevertheless affect land being used at that time for reserved purposes—and no doubt the noble Lord has in mind at this time the agricultural land. The use of land at any particular time is not immutable, nor can it be regarded in isolation from other land uses or other development needs. It is a matter to be considered as part of land use planning as a whole. Local authorities already have powers to provide for land to be taken in or out of agricultural or other uses as part of their wider responsibility for land use. And so far as there are ministerial powers in respect of land use, these will be transferred to the Assembly by virtue of Part VIII of Schedule 2 to the Bill. As powers in relation to land use in general, including powers to change land uses, are transferred it would make little sense to limit the Assembly's compulsory purchase powers in respect of land currently held for one particular type of land use. To do so would risk the fragmentation of land use planning, which by its very nature must be dealt with as a totality if it is to be effective.

The Assembly, under Clause 36(2), will need ministerial consent before making or confirming compulsory purchase orders in respect of the land of the accepted statutory undertakers, or of local authority land which is held for reserve purposes. These controls are not concerned with safeguarding any particular land uses but with safeguarding the carrying out of the statutory functions by the bodies operating in those reserved areas. For instance, it would be wrong for the Assembly to be able, without ministerial consent, to purchase compulsorily land being used for electricity generation. This might prejudice the Central Electricity Generating Board's ability to carry out its statutory duties.

Similar considerations do not apply to agriculture because there are no similar statutory functions to safeguard. But the Assembly in exercising compulsory purchase and land use powers will of course give full weight to agricultural considerations as to other considerations. In most cases compulsory purchase decisions are subject to the strict procedural requirements of the Acquisition of Land (Authorisation Procedure) Act 1946, and if the Assembly failed to give proper weight to all considerations they would be subject to challenge in the courts. If, in the last resort, the Assembly were in the view of the Government endangering agricultural land, then the intervention powers of Clause 35 would be available. But to provide an additional control in respect of agriculture would, I suggest, be over-fussy. It might even run the risk of the Assembly giving less weight to agriculture than it would otherwise do in the knowledge that a special agricultural protection was being separately provided. I hope that, in the light of this, the noble Lord may see fit to withdraw his Amendment.

Lord STANLEY of ALDERLEY

I thank the noble Baroness for that very long and detailed explanation, which puts my mind at rest. On a small point, I do wish that we also had the statutory powers, like the Central Electricity Generating Board, to prevent people from taking agricultural land, although I have to admit that this might be somewhat impracticable. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness ELLES

had given Notice of her intention to move Amendment No. 84A:

Page 14, line 21, at end insert— ("(3) The Assembly shall not without the consent of a Minister of the Crown make any provision in relation to the functions, qualifications, resignation or removal of auditors").

The noble Baroness said: This is an Amendment which I should like to consider further before moving it, and so, with the permission of your Lordships, I should like to postpone it until the next stage of the Bill.

Clause 36 agreed to.

Schedule 4 [Powers exercisable only with consent of a Minister of the Crown]:

[Amendment No. 84B not moved.]

2.7 a.m.

Lord MIDDLETON moved Amendment No. 84C:

Page 63, line 28, at end insert—

("The Water Act 1973 (c. 37) section 36(3) and Schedule 7.	The powers with respect to the making and confirmation of byelaws.
The Water Act 1973 (c. 37) section 21(2).	The power to give directions with respect to schemes under that subsection.").

The noble Lord said: It may be convenient to the Committee if in moving Amendment No. 84C I speak also to Amendments 84D and 84F. We now return to the subject of water, and before we go into the technicalities of these Amendments to Schedule 4 and of the later Amendments to Schedule 8, it may be helpful if, very briefly, this being just after 2 a.m., we look in a more general way at the water supply situation in Wales and England in order to examine the context within which these Amendments in my name and those of my noble friends, lie.

On Thursday night of last week the noble Lord, Lord Harris of Greenwich, said that the whole issue of water so far as Wales is concerned is central to the whole debate, and he went on to say: it seems to me absolutely unthinkable for us to move into a situation where the Assembly would not have powers which are laid on them in this Bill."—[Official Report, 15/6/78, Col. 660.]. It was an interesting debate on water and I hope I shall avoid going again over that ground. I agree with the noble Lord, Lord Harris, that the provisions in this Bill for devolving to the Welsh Assembly powers and responsibilities for water supplies are of great importance.

The basic facts are that much of the Midlands and parts of North-West England and Wessex are dependent for water on water resources in Wales. The Elan Valley supplies Birmingham; Lake Vyrnwy supplies Liverpool; the Clywedog reservoir stores water for discharge into the River Severn, and so on. In the nineteen-sixties Welsh opinion was strongly against the development of more reservoirs. Politically it was highly controversial and extremist bodies carried out acts of sabotage. I believe that now the climate has completely changed, no doubt partly due to the creation of the Welsh Water Authority and the passing of the Water Charges Equalisation Act. The Welsh and the Severn-Trent Water Authorities have agreed to promote jointly a project at Craig Goch to provide water to be discharged into the River Severn and, so far as I know, there is little opposition in Wales to that project.

This Bill introduces an entirely new factor into the situation, and if I may borrow some of the words used by the noble Lord, Lord Harris, it would be "absolutely unthinkable" not to examine closely the provisions in this Bill for giving the Welsh Assembly responsibility over the rain which the Almighty causes to fall within their territory and the ways in which both the Welsh and the English interests in using it are safeguarded.

In addition to the basic facts to which I have referred, the whole trend in water legislation in recent years has been towards a national water policy encompassing all regions, including Wales. Your Lordships were reminded last Thursday that the boundaries of the Regional Water Authorities are drawn hydro- logically. So we have the Severn-Trent Water Authority covering a large area of Wales and the Welsh Water Authority large areas in England. With certain exceptions, the Welsh Assembly will exercise devolved powers within the Principality. The transfer of control will cut across the principle that has been accepted by the Government and is contained in the Water Act 1973 that river basins should be managed as single units.

In electoral terms the Welsh Assembly will only be responsible for Welsh interests, whereas both Water Authorities are responsible for the provision of services to consumers who live in England. The Government, in drafting this Bill, have been fully aware of the possible conflict of interests and have taken very great trouble to write into the Bill sufficient powers for Government to prevent the Assembly taking action in the interests of Wales which may be against the interests of the nation as a whole, and these we shall be looking at later on.

While accepting the principle of devolving to the Assembly most of the powers exercisable by Ministers in relation to water matters, my Amendments and those of my noble friends are designed to narrow the possible areas of conflict between the Severn-Trent Water Authority and the Welsh Water Authority, and to ensure that the Government have sufficient powers to intervene where the national interest in water may be threatened.

May we turn to the Amendments to Schedule 4. Clause 36(1) and Schedule 4 provide the devolved matters which can be exercised only with the consent of a Minister of the Crown. The matters currently listed in Schedule 4 mainly concern orders of various kinds which may affect the interests of excepted statutory undertakers, defined in Clause 79. The provisions these three Amendments are designed to insert into the Schedule are different in character and are of two types: first, powers which are essentially local in character, and therefore properly devolved to the Assembly, but which may have an incidental effect on the national policy for water in England and Wales and should therefore be exercised with the consent of the Minister. Secondly, powers which are local in character but which should be exercised for administrative reasons in a manner compatible with the way they are exercised in the English part of the Severn-Trent Authority's area. The insertion of these powers in Schedule 4 keeps the powers in the hands of the Assembly but enables arrangements to be made to secure these ends.

If I may pick out a few of these powers by way of illustration, with regard to the powers with respect to the making of by-laws, these arise under various enactments, and they can all be regarded as local matters which should operate harmoniously throughout an Authority's area. For example, by-laws under the Salmon and Freshwater Fisheries Act 1975 regulate, among other things, the close seasons and close times for fishing. These may be varied according to local circumstances, but they must hang together throughout a river basin. The consent of the Minister is designed to ensure this, while confirmation by the Assembly will take care of the local circumstances.

The power to give directions with respect to schemes under Section 21(2) of the 1973 Water Act should, it is thought, be exercisable with the consent of the Minister of the Crown to ensure against excessive cost that might fall upon English consumers by reason of an over-elaborate scheme for water recreation in the Welsh part of the Severn-Trent Authority. The Salmon and Freshwater Fisheries Act power in Amendment No. 84D, if it remains under the supervision of a Minister of the Crown, would ensure, for example, that charges on riparian owners to pay for an authority's fishing budget should, as with by-laws, operate consistently throughout a river basin.

Amendment No. 84F deals with Land Drainage Act 1976 matters. With regard to special drainage charges, it is clearly desirable in the case of land drainage schemes that charges on land benefited should be so fixed as to be fair on both sides of the border. Differential drainage rates are again a local matter, but the consent of the Minister is needed to ensure that similar cases are dealt with in a similar way. Incidentally, one internal drainage board responsible for raising such rates lies astride the England/Wales border.

The consent of the Minister is required to ensure fairness in the appointment of an arbitrator in an appeal against drainage rates under Section 77. Section 85 of the Land Drainage Act gives power to issue directions regarding forms of statement in connection with precepts. It would be administratively cumbersome and expensive if these forms of statement differ within a water authority's area. Finally, with regard to tolls on vessels navigating in navigable waters, it is desirable that the Minister's consent should be sought in order to ensure an even-handed charging policy in the English and Welsh parts of the water authority's area. I beg to move.

2.18 a.m.

Baroness STEDMAN

I am grateful to the noble Lord for taking these three Amendments together because they to hang together. The Government believe that water is so central to domestic matters of everyday concern to people in Wales that the Assembly should be given substantial powers. But it is necessary also to take account of the fact that the Wales/England border does not, as the noble Lord has told us, follow the hydrological boundary of the Welsh Water Authority and the Severn-Trent Water Authority. The Bill therefore proposes that in general the two water authorities operating in Wales should be responsible to the Assembly for their activities in Wales and to the Government for their activities in England.

It is also necessary to take into account that Wales is an important source of water for England and that decisions on developments in Wales can have important implications for England and Wales water policy and for certain English holders of statutory rights connected with water. The Government have recognised this by reserving responsibility for the drawing up of the overall England and Wales policy for water; by providing (in paragraph 43 of Schedule 11 to the Bill) that the Welsh policy for water must be in harmony with overall policy; and by providing for special intervention procedures under Schedule 8 to the Bill to protect the interests of the England and Wales policy and certain statutory interests in England.

The Amendments which the noble Lord has put before us, and which are now under discussion, would seek to make decisions by the Assembly on by-laws, water recreation schemes, certain fisheries orders and land drainage functions in Wales subject to ministerial consent. English interests are protected under Schedule 8 to the Bill. It has not been established what reserved interests in Wales need this protection under Schedule 4 and in the Government's view these limitations on the Assembly's actions are unjustified. As regards Amendment No. 84C on the by-laws and the water recreation schemes, Section 36 of and Schedule 7 to the Water Act 1973 confer ministerial powers only for the confirmation of water authority by-laws, not for the making of by-laws by Ministers, which is suggested by the Amendment. The Assembly will only be able to confirm by-laws relating wholly to Wales, and we think that it would be quite unjustified to require ministerial consent in such cases.

As regards the water recreation schemes, Section 21 of the Water Act 1973 requires the Welsh Water Authority to draw up a plan in consultation with the Severn-Trent Authority on the recreational use of the water rights of both authorities in Wales. The Welsh Assembly would be required to settle any dispute between the authorities. This again is purely a Welsh matter not affecting English interests. Any financial commitments arising from the policy would do so within Wales and would be set against the Assembly's financial allocations.

As regards Amendment No. 84D dealing with salmon and freshwater fisheries, the regulation of salmon and freshwater fisheries by the Assembly could, of course, affect English fishing rights, but this is already recognised in the Bill. As Section 28 of and Schedule 3 to the Salmon and Freshwater Fisheries Act 1975 are listed in Part IV of Schedule 8 to the Bill, the Secretary of State will be able to intervene if an order made by the Assembly (which would be made mainly on the initiative of the water authority itself) does adversely affect English fishing rights. To make such an order subject in all cases to ministerial consent under Schedule 4 is quite unnecessary.

On land drainage and the Land Drainage Act 1976, Section 51, special drainage charges are determined by water authorities and the Assembly's powers will be limited to increasing, on the application of the water authority, the maximum amount of charge per acre under the authority's scheme or increasing the overall maximum of 10p specified in the Act. There are no reserved interests which should be protected and to make the Assembly's exercise of the power as regards Wales subject to ministerial consent again we do not think can be justified.

Under Sections 68 and 69, the making of differential drainage rates is undertaken by internal drainage boards after consultation with their water authorities. Unless the internal drainage board happens to be the water authority itself, the Assembly's power will be limited to confirmation of the orders of boards in Wales since directions to internal drainage boards as to the making, variation or revocation of orders fall to the water authority. If the internal drainage board is a water authority, directions as regards Wales may be given by the Assembly; but it is clear from the provisions mentioned that the issues are local and that as regards Wales the Assembly should not be made subject to ministerial consent.

Still on the final Amendment, Amendment No. 84F, Section 77 provides that an owner or occupier of land who is aggrieved by a drainage rate may, instead of appealing to the Crown Court, agree with the drainage authority to refer the matter to arbitration. If the parties subsequently fail to agree on who should arbitrate, the Assembly will be able, for cases in Wales, to appoint an arbitrator. There seems no possible justification for making the Assembly's appointment subject to ministerial consent.

As regards Section 85 the only power here to be exercised by the Assembly is the setting of the form of statement of the purposes to which the amount demanded by any precept issued by a water authority to internal drainage boards is intended to be applied and the basis on which it is calculated. It seems incredible to suggest that ministerial consent must be obtained to the form that is to be used in Wales.

On the final section, Section 88, the Assembly will be able, on the application of a drainage authority, to impose tolls on certain waters not controlled by navigation, harbour or conservancy authorities, where the cost of maintenance or works in connection with the waters will be increased as a result of navigational use. Once again, we do not accept that ministerial consents for orders made by the Assembly are justified, particularly since the objector is given the right to special Parliamentary procedure under Schedule 10 if he is a harbour or conservancy authority. We think that we have the safeguards already in the Bill, and we are satisfied that these Amendments are not necessary.

Lord RAGLAN

I am very grateful to my noble friend for this very detailed explanation which she has given. I am under some difficulty, because she will have noticed that I have tabled an Amendment, probably for tomorrow, dealing with the troubles of the Welsh Water Authority in connection with this Bill. It is so late now that it is quite certain that I shall not be able to see what my noble friend has said printed in Hansard tomorrow before I make my speech. If I could have a copy of the brief which my noble friend has read out to the Committee, I should be most grateful because it may save some time tomorrow and may clarify matters a little. When I say that it may clarify matters a little, it is because I have become so confused with the referencing and cross-referencing of various Acts; I have been fairly rifling through these various Acts on the bench trying to keep up with what my noble friend has said and what the noble Lord, Lord Middleton, has said. I really do not know where we are.

Also, I have to take these remarks in connection with the speech made by my noble friend Lord Harris of Greenwich last Thursday. In examining the remarks that my noble friend made, I am not quite sure whether I agree with what he has said is the case in relation to certain matters affecting the Welsh Water Authority. This is a matter of astonishing complexity. I hope that my noble friends on the Front Bench will be able to present these matters to us with rather greater clarity than, to judge from speaking to other noble Lords who have taken an interest in this matter, they have been able to do so far. I am rather worried about it and I am not the only person to be worried about the whole water situation, which my noble friend Lord Harris of Greenwich says is one of the matters that is central to the Bill. I think that it is important that we get it absolutely right. We shall not get it right unless we first understand it.

Baroness ELLES

Before the noble Baroness, Lady Stedman, replies, I wonder whether I might join with the noble Lord, Lord Raglan, who has put a fair point to the Committee. This matter will probably be debated tomorrow and obviously at this late hour we shall not have a chance to have a copy of the Official Report of tonight's proceedings. Would it be too much trouble for the noble Baroness to arrange that copies at any rate of her speech, if not her brief, could be made available to Members of the Opposition for tomorrow?

Baroness STEDMAN

My understanding is that proof copies of Hansard, even at this late hour, will be available in the Library tomorrow. But I shall get my secretary to check on that and, if that is not so, I shall see that Members get copies of the brief.

Lord MIDDLETON

I, too, am most grateful to the noble Baroness for her most detailed statement. These proposals are not uncomplicated. I am also grateful that she will take care to ensure that we get a copy of what she said. These proposals are not intended to cast doubts upon the competence of the Assembly. They are designed to reduce the possibility of uneven local administration; for instance, along the whole length of a river such as the Severn. It may be that providing, as these Amendments seek to do, that the powers which are essentially local in character under the various enactments specified in these Amendments should fall under the ministerial consent provisions of Clause 36 and Schedule 4 is not an ideal way of securing even treatment on both sides of the Border.

Undoubtedly there will arise difficulties and inconsistencies over the administration of the water authority areas where part of a river basin is in England and part in Wales, and where an authority is responsible in one case to the Secretary of State and in the other to the Welsh Assembly. One can imagine the situations that might arise if different by-laws apply to different banks of the same river, and that is quite conceivable under the Bill as it stands. The Bill is therefore unsatisfactory in this respect. We must try to get it right. In view of what the noble Baroness said, this may not be the right way to go about it so I shall not press the Amendments, but my noble friends and I will consider the Government's views and will look very carefully at what the noble Baroness said, and perhaps come back at a later stage.

Lord RAGLAN

I think it is possible that the Amendment in the name of my noble friend Lady White and myself, No. 102C, might, if the Government accept it, meet the noble Lord's fears and objections.

Lord MIDDLETON

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84D not moved.]

Baroness ELLES moved Amendment No. 84E: Page 63, leave out lines 31 to 38.

The noble Baroness said: This Amendment is consequential on an earlier Amendment, No. 57C. I beg to move.

Baroness STEDMAN

The Government accept this Amendment. It is consequential, but we accept it totally without prejudice to the Government returning to the whole matter after the Bill has gone to another place.

[Amendment No. 84F not moved.]

Schedule 4, as amended, agreed to.

Schedule 5 [Reserved Local Matters]:

2.32 a.m.

Lord ELTON

had given Notice of his intention to move Amendment No. 84G: Page 63, column 2, line 49, at end insert ("Education"). The noble Lord said: I do not know whether it is the lateness of the hour or the exactly similarly late hour at which I drafted this Amendment but it does not now appear to me to achieve what I then thought it did. The difficulty of bowling in this particular match is that one does not know which cricketer is going to play the ball back at one. A few minutes ago I informed the noble Lord, Lord Donaldson, that it was my intention not to move this Amendment. If it is someone else who has got the pads on I can only apologise for making their journey from the pavilion unnecessary.

Schedule 5 agreed to.

Clause 37 [Industrial and economic guidelines]:

Baroness ELLES moved Amendments Nos. 84H, 84J and 84K:

Page 14, leave out lines 29 to 35.

Page 14, leave out line 37.

Page 14, leave Out lines 41 and 42.

The noble Baroness said: With the permission of the Committee, I beg to move Amendments Nos. 84H, 84J, and 84K, which are all consequential on Amendment No. 57C.

Lord DONALDSON of KINGSBRIDGE

The Government accept these Amendments, but without prejudice to returning in another place to the question of the restoration of Part IX of Schedule 2.

Clause 37, as amended, agreed to.

Clause 38 [Agency arrangements and provision of services]:

2.35 a.m.

Lord ELTON moved Amendment No. 84L: Page 15, line 15, after ("authority") insert ("which discharged the functions of the authority").

The noble Lord said: I fear this may be a rather more technical field, so at this hour I will make some simple observations on what is intended to be a simple theme. Clause 38 provides for the making of agency arrangements between authorities and the provision of services, and it permits the Assembly to make an agency arrangement with a relevant authority for specified functions which we need not enumerate at this stage; they are in Clause 38(1).

Clause 38(2) says that no such arrangements for the discharge of any functions shall affect the responsibility of the authority on whose behalf the functions are discharged. It would seem to the lay eye that, by inference, an effect is permitted on the authority actually discharging the functions, and the effect of the Amendment is to make both authorities in question remain responsible as they woulp have been had the arrangement not been entered into by either of them, thus restoring parity of responsibility to what it was before. I hope I have made myself clear. If I have not, I shall return to the matter at the request of the noble Lord.

Lord HARRIS of GREENWICH

This clause simply enables arrangements to be made between the Welsh Assembly and any relevant authority for one party to carry out functions or provide services on behalf of the other. There is no compulsion on either party to enter into an arrangement. There could, for example, be no question of the Welsh Assembly requiring a United Kingdom Minister to carry out a function. A principal and agent will, therefore, enter into an arrangement only where it is in the interests of both parties to do so. The clause is necessary because a person or body on whom a statutory duty is laid cannot delegate that duty or discharge it through any other person or body unless Statute so provides.

Agency arrangements between United Kingdom Government Departments and Northern Ireland Departments were a long-standing feature of relations between Whitehall and Stormont. Provision was made for them in Section 63 of the Government of Ireland Act 1920 and in Section 11 of the Northern Ireland Constitution Act 1973, and many arrangements were made under these provisions. For example, the Ministry of Agriculture for Northern Ireland carried out a great deal of work on an agency basis on behalf of the Ministry of Agriculture, Fisheries and Food. The Commissioner of Valuation for Northern Ireland valued property for the Treasury and the Commissioners of Inland Revenue and Customs and Excise. Her Majesty's Stationery Office in Belfast did a great deal of work on behalf of Northern Ireland Government Departments. Those are a few examples, some of which may be appropriate so far as the Welsh Assembly is concerned.

I need not go into great detail, although the noble Lord quite reasonably asked me to give some account of the general situation. The Amendment seeks to ensure that the agent's responsibility to discharge a function is not altered by the agency agreement. To be frank, I do not think the logic behind the Amendment is absolutely correct.

As regards the discharge of the function itself, the responsibility is vested in the principal, not in the agent. The clause makes clear that the conclusion of an agency agreement in no way alters the principal's responsibility, but because the agent has no responsibility in regard to the function itself, there can be no question of affecting his responsibility. That is not to say, of course, that he has no responsibility in regard to the agreement. There, quite rightly, the normal rules of agency will apply, and if the work is carried out under contract, the normal principles of contract law will operate.

I should like to give an example which will, I hope, illustrate this point. The Wye-Severn Bridge complex is currently administered on both sides of the Border by the Avon County Council. The Welsh Assembly might very well wish to continue this arrangement. If it did so, responsibility for the maintenance of the roads in the Welsh part of that complex would remain with the Assembly, and if the citizen wished to complain about the state of the roads, his complaint would lie against the Assembly. Any failure on behalf of Avon County Council to maintain the road surface to a satisfactory standard would be dealt with under normal agency arrangements, so that the Assembly would seek redress against the council in the normal way that it would seek to resolve any contractual dispute.

That deals to some extent with the first Amendment. With regard to the others, I do not know whether the noble Lord is asking me to give an explanation on remuneration and other matters. I hope that what I have said provides a broad account of our position on the clause.

Lord ELTON

I am much obliged to the noble Lord. The nub of what I was looking for was the normal principles of contract, because I was concerned about how a lay eye would view a situation where a function was being discharged for one authority by another which failed in such a way that it damaged the body receiving it to discharge the function. For example, the Ministry of Agriculture might knock down something with a bulldozer when it was supposed to be grading a road adjacent to a building. One wonders where the responsibility would lie in such circumstances. I suppose that the lawyer's eye would at once see that this would not be a responsibility; it would be a liability. The noble Lord has made that clear to me, and I thank him for it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.43 a.m.

Lord ELTON moved Amendment No. 84M: Page 15, line 16, at end insert ("and the authority on whose behalf the functions are discharged shall remunerate in full the authority which discharged the functions.").

The noble Lord said: We have now established a contractual relationship, and I should be interested to know what are the principles behind the costing of it. Of course there are endless permutations of the kind of authorities that may be involved, but rather than elaborate examples, I should like to know from the noble Lord whether the transactions covered by the clause will be reflected in the accounts of the bodies concerned. If large sums of money are being dealt with, the matter may be quite important. If the Assembly is doing something for a Ministry—rather than the other way round—it would not be fair that this should end up by being paid for by the Welsh out of their block grant, when it ought to be borne by the Treasury out of United Kingdom taxation. I beg to move.

Lord HARRIS of GREENWICH

The Amendment seeks to provide that the principal on behalf of whom the functions are discharged shall reimburse the agent, unless other arrangements are agreed. This is not provided for in the Bill because it is unnecessary. The conferring of the power to enter into contracts of agency carries with it the right to enter into arrangements regarding reimbursement. Even if there were no express terms as to reimbursement in the contract, the payment of reasonable reimbursement may be implied from the circumstances of the case. In the vast majority of cases it will no doubt be agreed between the parties that the agent's expenses should be reimbursed by the principal. So, for example, where the Welsh Assembly is the principal, the agent's expenses will ordinarily fall on the block fund. In our judgment, there is certainly no need to provide expressly for this. If the principal, on whichever side he may be, makes a bad bargain, he will be held to account by the usual Parliamentary, or Assembly, processes.

Lord ELTON

I think that that is as much as I can take on board at this stage, and I shall read it with interest. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.45 a.m.

Lord ELTON

had given Notice of his intention to move Amendment No. 84N: Page 15, line 19, at end insert ("in Wales"). The noble Lord said: We need not, I think, spend much time on this, because from what the noble Lord has said it is clear that the arrangements which have been described take place across the Border, not only from the Assembly to Government but also, potentially, from the Assembly to local authority. That being the case, I can see that this Amendment would stultify the necessary arrangements. With that explanation, I will not move this Amendment.

Clause 38 agreed to.

Clause 39 [Provision of information]:

Lord ELTON moved Amendment No. 85: Leave out Clause 39 and insert the following new clause:

Provision of information

("39. The Welsh Assembly shall send to the Secretary of State such reports and returns and give him such information with respect to the exercise of its functions as the Secretary of State may require or as may be required by either House of Parliament.").

The noble Lord said: Clause 39 provides for the provision of information. Where the Secretary of State requires information "relating to the exercise of functions by the Assembly", then he may require it. The re-phrasing suggested in the Amendment is designed to elicit the circumstances under which this may be necessary and the procedures which will bring it about. I do not wish the noble Lord to detain the Committee at great length upon this, but it seems to me that, since we are talking about putting Wales at arm's length, as it were, in some respects, we wish to be sure that the arm, at least, is aware of what is going on. I have chosen a very bad simile; I am sorry. We want to establish that there is a sensitive and viable connection between the functions of the Secretary of State and those of the Assembly in so far as they rest upon the passage of necessary information between the two. I beg to move.

Lord HARRIS of GREENWICH

It may be of some help if I explain the general intentions behind this clause, and I will do it, as the noble Lord, Lord Elton, invited me to, as briefly as is appropriate in all the circumstances. I think this is a very simple and short clause, intended more as a back-up power than for regular use. Ordinarily, the Welsh Assembly could be expected to co-operate in providing necessary information to the Secretary of State, but there could be circumstances in which either side, or both, would feel happier if there were statutory powers in the background.

The sort of information which the Government may need to obtain for United Kingdom purposes is information about devolved matters which is relevant to non-devolved matters or required for the proper discharge of non-devolved responsibilities—for example, about trends in secondary education, which would affect the planning of university provision or demand for student awards—or information which needs to be produced on a consistent United Kingdom basis to meet requests or requirements from international organisations, such as United Nations bodies or the European Economic Community. There are a number of examples which one could give, such as health statistics for the World Health Organisation, or social statistics for the EEC. I do not know whether the noble Lord would like me to go on at any greater length. I could, if he would like me to do so, go into greater detail, but that, broadly speaking, is the purpose and intention of this clause.

Lord ELTON

That is admirably clear. The point that the noble Lord has not picked up in the Amendment—and neither did I at the outset—is the point that, under the Bill as drafted, the contact is always going to be through a Minister of the Crown making a request, is it not? Under the Amendment, the request may be made by either House of Parliament. I really do not think this is a principle we want to delve into in great depth at the moment, but I would have thought that the noble Lord's brief would have contained some reaction to the suggestion that it might be open to Parliament to speak direct to the Assembly as well as to a Member of Parliament to speak to the Assembly. If there is a relevant paragraph, I think it would be interesting if we could hear it.

Lord HARRIS of GREENWICH

I will look into that point. We looked into this question at an earlier stage and we decided that the reference to Parliament was unnecessary because Parliament is sovereign. In any event, its Select Committees can require persons or papers without any specific statutory powers. Standing committees could obtain any information by asking the Minister on the Committee to request the information from the Welsh Assembly through the Secretary of State. That deals with the particular point raised by the noble Lord.

Lord ELTON

Very adequately. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clause 40 [Welsh Consolidated Fund and Loans Fund]:

2.51 a.m.

The Earl of GOWRIE moved Amendment No. 85A: Page 15, line 28, leave out from ("Fund") to end of line 32.

The noble Earl said: We now come to the financial provisions of the Bill. As the Secretary of State for Wales in the present Government said when introducing this Bill that the system of financing the devolved services will be crucial to the success of devolution, we believe that our proposals for a block fund and related arrangements are fair and practical. In the best of all possible worlds one would not go to this crucial aspect of devolution (as the Secretary of State put it) at 3 o'clock in the morning. Our intention is to investigate whether they are as practical and fair as can be achieved; our Amendments are down to try to arrive at that purpose.

My noble friend Lord Elton told me that the Committee does not like to have a lot of Amendments moved together en bloc as it finds that rather confusing. Therefore I shall try to avoid doing this. But since the financial provisions and arrangements are really one debate and since we must debate this before we can make sense of the individual Amendments or the Government's responses to them, I hope—and I am in the hands of the Committee—I may be allowed to debate certain of these Amendments together and then perhaps move them separately.

I do not want to engage in any pretences. I must, frankly, say that it is not my intention to divide this evening but to get the finance debate over, so to speak, to see what the Government have to say to it and then return and look at our own Amendments again in the light of the Government responses. I am therefore going to talk to Amendment No. 85A, to Amendment No. 87B, to my manuscript Amendment to Clause 44, to Amendments Nos. 92D to 92H and to the manuscript Amendments to Clause 58. In other words, I am going to have the rate support grant and block grant debate appropriately en bloc. But, in order to avoid confusion, when the debate is over, I will move the Amendments individually and formally.

I think we must start by looking at the present system of local government financing in Wales. It is, in brief, a negotiation between the local authorities in Wales and the Secretary of State as to what amount of rate support grant should annually be allocated. Under the present Bill, the Secretary of State is to pay the Welsh Assembly—this new body —a block grant. This block grant is to include a notional figure for regional support grant. In other words, the Welsh Assembly will decide how much regional support grant is going to be necessary in any given case to any given local authority.

The Welsh Assembly can either pay out money to a Welsh local authority or it can withhold monies, as I understand it, without having to refund the block grant back to the Secretary of State, back to Central Government, as it were. If there were to be a cut in the block grant or in the amount of rate support grant which the Welsh Assembly was handing out, the individual local authority would have to raise rates. We are a little anxious that this is an effective piece of back-door taxation and that, therefore, we may be getting into a potentially tricky situation and we want some Government reassurance on this point.

We feel that the general guidelines should be that the additional costs of the Welsh Assembly itself, and the work that it has to do, should come off the general block grant from Central Government rather than be additional to it. I think that one of the political problems that we have with devolution generally is that, on the one hand, people want to have greater control and greater involvement in their affairs but, on the other hand, the general movement is equally and forcefully towards economies in public spending and increases of public accountability. Our job here as a Parliament as a whole is to try to steer between these two somewhat contradictory positions.

The point has been raised in the devolution debates, not only on this Bill but on the Scotland Bill, that if tax raising is to be divorced from tax spending, then power will naturally gravitate towards tax raising power. In this sense, the Assembly can be seen as setting in train in a paradoxical manner an anti-devolutionary process. The Layfield Report argued for, either adopting a financial system which frankly recognised need for strong central direction or … taking positive steps to increase the ability of local authorities to manage local affairs. If that is not done "— the report went on— we believe that there is bound to be an increasing shift of power to the centre, but in circumstances in which responsibility for expenditure and local taxation will continue to be confused.

Layfield stated: We are convinced that, unless increased powers of local decision are matched by greater control by local authorities over their sources of revenue, the combination of financial and political forces will continue to push in the direction of greater, not less, central control". That, again, is one of the difficulties that we have to steer throughout the entire devolution debate.

My honourable friend, Mr. David Price, during the debates on the Scotland Bill, raised this very issue and itemised the conflicts it might cause. He said: The Scottish Executive will have lots of things to do but the power to control money will not be passed to it. I can think of nothing which is more designed to produce 'aggro' between Edinburgh and Whitehall than that."—[Official Report (Commons), 22/11/77; col. 1362.] Originally the Labour Party did recognise this problem in the context of Wales and it demanded that the Assembly should have a degree of financial independence commensurate with its responsibilities. To settle for less, it felt, would be a negation of the principles on which British local government is based.

Thus, to give the Assembly the requisite amount of independence, the Labour Party paper held out for a personal income tax levied in Wales and a right to levy and utilise certain minor taxes on capital as well as stamp duties and selective employment tax. These proposals ran into opposition, as might have been expected, from the national Labour Party and, indeed, from the Treasury which was particularly concerned about retaining control over national demand management.

As a result, therefore, the Government suggested the centrally determined annual block grant to fund the Welsh Assembly. The Government left the doors very much open on the subject of local revenue power. In the July 1977 White Paper we read the lines: The Government will be ready to consider incorporating the necessary revenue-raising powers in subsequent legislation. The White Paper went on: There is no call for — Welsh taxpayers to carry a higher permanent burden of taxation than elsewhere". But taxation does have a way of becoming permanent once one starts off on any given tax road, despite good intentions. It seems to us to be doubted that Welsh taxpayers will be overjoyed to hear that their burden of taxation is not to be permanently higher but only higher from time to time. Nor is it much of an incentive to industry to locate in regions where additional local taxes are imposed.

Professor Tait of the University of Strathclyde regards the proposed annual block grant system as unstable and as one which would gradually lead to separation as a result of constitutional conflict. He says in The Economics of Devolution, an essay written in 1975: This is the classic knife-edge position. Either the position is one where powerful central Government is prepared to take politically unpopular decisions to restrain strong, affluent regions, or these regions which are weak and require expansion start to behave as independent countries. The inbetween stages can be unstable.

My honourable friend, Mr. Timothy Raison, pointed out in the debate on Scotland and Wales that the annual block grant system would be bound to produce bad feeling among other regions of the United Kingdom. It seems to us that the force of his argument is that in the scramble for national resources the block grant system gives considerable advantage to the regions operating it with the force of Assemblies behind them. The English then would naturally resent what was happening, and so would Ulster people. Therefore our general feeling, in the context of the financial background to the Bill, is that the financial provisions could, if we are not careful, create a regular conflict between Wales and Westminster, and therefore endanger the unity of the United Kingdom; could raise questions of democratic accountability, and could indeed threaten some extra taxation in Wales. We must remember that the rate support grant system, which I shall come to in just a moment, constitutes over half the whole block grant, and the powers of the Welsh Assembly to withhold a rate support grant without refunding it could cause hostility and jealousy, if you like, in England as well as in Ulster.

The position under the present Bill, therefore, is that the Welsh Assembly now rather than the Secretary of State, as previously, will negotiate with local authorities what they want in the form of rate support grant. With the exception of the specific grants, that is to say, for example, for the police, which will form a small proportion of the total rate support grant and which will go straight to local authorities, the Assembly will allocate the rate support grant as between the authorities themselves. So the sums allocated will come out of the Welsh Consolidated Fund, which is negotiated by the Assembly and by the Secretary of State.

It seems to us that in this negotiation there will clearly be certain conflicts of argument. The Assembly will argue that they need so much for education, so much for water, so much for health, and so on; and then they will try to itemise what, in addition to those specifies, they will need for rate support grant. But surely the point of devolution is that the Assembly can choose, if it wishes, less than a certain given figure for education. It will decide how much it may spend of these overall items and can choose whether to spend more on any other given item. We, of course, do not dispute that it should have this right, but the net result will be that there must be some sort of figure which may be assumed to suffice for rate support grant.

In the Bill the figure is not specified. It is hidden; it is concealed, as it were, within the total block grant. What we find objectionable here is that the Assembly can negotiate a figure for rate support grant with the local authorities, can obtain this figure from the Secretary of State, from central Government, as part of the overall block grant; but can then either not allocate it to the Welsh local authorities themselves or, worse still, can spend that money on something else. This is the time when nearly all political Parties are agreed that Government spending has to be watched with extreme care.

The Amendments we have put down require the rate support grant figure to be specified, and require the Assembly to distribute the whole specified figure. If our Amendments should be passed, the Assembly will still, of course, have the power of allocation as between the individual authorities; and the Assembly will still have the power to pay a very small rate support grant to the authorities, because it can simply ask for a small rate support grant allowance from the Secretary of State. And it will still be able to pay money for rate support grant from outside the specific figure: that is to say, from outside the rest of the overall block grant.

The two Amendments which I have put down in manuscript—and I apologise for this—were designed on the original understanding that we would probably not debate the financial provisions until Friday. I am glad that we have had a chance to have the general debate before then, but I think noble Lords on all sides will appreciate that that change put us in some difficulties. I beg to move.

3.6 a.m.

Lord HARRIS of GREENWICH

The noble Earl has, perfectly reasonably, made a Second Reading speech on his whole group of Amendments. I shall reply at rather greater length than I otherwise would, because I am dealing with a whole group of Amendments about which he will no doubt decide how to proceed after I have spoken. Let me first take the general question of tax raising, which the noble Earl, Lord Gowrie, raised at the outset. The Government's position on this question was set out in paragraph 65 of the White Paper Devolution: Financing the Devolved Services, to which the noble Earl referred. The Government certainly are not opposed to limited supplementary tax powers to finance optional extra spending, but no one has yet identified a suitable tax for this purpose. The Government have, in this situation, undertaken to discuss possibilities with the Assembly in due course, but if agreement on this question is reached a programme of primary legislation will be needed at Westminster.

The noble Earl, perfectly reasonably, began with the first of his Amendments, No. 85A, and I shall now turn to that. He raised a number of questions related to this clause about the operation of the Welsh Consolidated Fund and the Welsh Loans Fund, and I should like to say a few words about the different purposes of those two funds. To start off with the present position, the capital spending needs of Ministers and their Departments, as well as their current spending needs, are met from moneys voted by Parliament; that is, out of the Consolidated Fund. But the capital needs of many public bodies which are responsible to Ministers are met by borrowing. In certain cases, this borrowing takes place from the Minister himself, who obtains the money from the National Loans Fund. Advances made by Ministers in this way have to be repaid with interest at the appropriate rate.

The arrangements laid down in the Bill mirror these national arrangements. The current and capital needs of the Welsh Assembly will be met from the Welsh Consolidated Fund, which will be financed by the block fund to be voted by Parliament. The capital needs of public bodies for which responsibility is transferred to the Assembly will continue to be met by borrowing. In cases where such borrowing takes place at present from the National Loans Fund, through a Minister, it will take place in future from the Welsh Loans Fund through the Assembly. The Welsh Loans Fund will be supplied from the National Loans Fund by the Secretary of State.

The Welsh Loans Fund, accordingly, is not a source of finance for the Assembly's own spending, but for spending by various public bodies operating in devolved fields, which will look to it for repayable advances to finance their capital expenditure. The bodies concerned are those to whom advances are made under the Acts listed in Schedule 6 to the Bill, notably—and let me give some obvious examples—new town development corporations and water authorities, which we have spent a fair amount of time discussing already. What we have sought to do in the Bill is to match the national arrangements as closely as possible, while recognising the need for the bodies concerned to account in future to the Assembly and not to Ministers. The arrangements are identical with those contained in the Scotland Bill, to which your Lordships' House has agreed.

I do not propose to go into any more detail so far as this Amendment is concerned, although, if the noble Earl invites me to do so, I shall. He raised a number of other questions, and I think that I ought to try to deal with them. So far as the noble Earl's questions on the rate support grant is concerned, if it is convenient both to him and to the Committee I think that I ought to deal with them. At the moment I am referring to the phraseology of Amendment No. 87 which stands in the name of the noble Lord, Lord Cullen of Ashbourne. If this Amendment were to be taken literally, we should have to advise the Committee that it would be unnecessary and misleading and, indeed for these reasons, undesirable.

First, in our view it is unnecessary, because it is clear from Clause 58 and from Schedule 2 that responsibility for payment of the rate support grant is to be transferred to the Assembly. Clause 58 provides that it will be paid out of the Welsh Consolidated Fund. Secondly, the Amendment is misleading because rate support is only one of the forms of central Government expenditure on devolved matters which will have to be paid out of the Welsh Consolidated Fund. Others —for example, spending on the health services, housing subsidies and transport subsidies—are all matters of great importance, and that is the way in which they will be dealt with. Thirdly, to carry this Amendment would be misleading, because it would be wrong, in our view, to specify rate support grant alone.

Finally, the Amendment is undesirable because it would take payments of rate support grant out of the arrangements by which spending must be in accordance with the appropriation orders made by the Assembly as a whole and turn such payments into some kind of special charge upon the Fund. The Government accept, however, that there has been some misunderstanding as to how the rate support grant arrangements will work after devolution. Therefore, it is helpful to have had this Amendment tabled by the noble Earl. If he would like any more detail on this question of rate support grant, it might be more sensible, in view of the hour, if I were to write to him. However, if the noble Earl would prefer me to go into greater detail now, I should be prepared to do so. However, I think that the most appropriate course of action is for me to go into this matter by correspondence with the noble Earl, and that I shall gladly do.

So far as Amendment No. 87B is concerned, the words proposed to be left out are, in our view, a necessary part of the arrangements provided for in Clause 42(3) for accounting for sums received by the Welsh Assembly. Sums received by way of repayment of advances from the Welsh Loans Fund or payments of interest on such advances should clearly be paid into the Welsh Loans Fund, as Clauses 55 and 56 require, and not into the Welsh Consolidated Fund.

In the light of what I have said already, I think that the most appropriate course is to ensure that the words uttered by the noble Earl are carefully examined. I shall deal with such other matters as he has raised by correspondence, in good time for the noble Earl to deal with this matter, if he wishes to do so, at the Report stage.

The Earl of GOWRIE

I am grateful to the noble Lord. I agree with him. I do not think that this is the time to go into the details of the rate support grant. However, we reserve our right to return to this subject on Report. I should like to examine my Amendments in the light of what the noble Lord said this evening, and also in the light of his answers to those parts of my speech where I itemised some of our anxieties, which he is very welcome to send to me in the form of correspondence. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 40 agreed to.

Clause 41 [Payments out of Welsh Consolidated Fund].

3.16 a.m.

Lord CULLEN of ASHBOURNE moved Amendment No. 86: Page 15, line 35, leave out from ("General") to end of line 36.

The noble Lord said: This is a probing Amendment to discover quite why the Government have specifically removed from the Assembly the need to have credits granted on the fund by the Welsh Comptroller and Auditor-General when transfers are made from one fund to the other. All other payments out of the Welsh Consolidated Fund require the granting of credits. These grants appear to be the only exception. There may well be a good reason for this which has so far eluded me. I am not in any way suggesting that such transfers need a special monitoring, but since all other payments come, so to speak, under the eye of the Welsh Comptroller I see no reason why these transfers should not do so as well. I beg to move.

Lord HARRIS of GREENWICH

The Bill reflects the United Kingdom financial arrangement of a Consolidated Fund and a National Loans Fund. Clause 40 of the Bill sets up a Welsh Consolidated and a Welsh Loans Fund—we have just discussed this point—and subsection (2) provides for transfers between these two Funds, which reflects provisions of the National Loans Act, 1968. That is the answer to the noble Lord's point.

The prime purpose of the provision in subsection (2) is to enable short term deficits in one Fund to be offset by balances in the other, thus keeping to a minimum the need to use the necessarily more expensive short-term borrowing powers provided by Clause 46. Transfers of this kind, occasioned by fluctuations in cash flow, may require to be made at extremely short notice when accounts are made up at the end of a particular day. It would greatly reduce the value of the facility if separate authority was required from the Welsh Comptroller and Auditor General for each transfer. But in any case a transfer is not an expenditure and there is no need, in the Government's view, to impose the safeguard of requiring a creidt from the Welsh Comptroller and Auditor General.

Lord CULLEN of ASHBOURNE

I am grateful to the noble Lord. I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord CULLEN of ASHBOURNE moved Amendment No. 87:

Page 16, line 8, at end insert ("or (c) is to he distributed to local authorities in Wales under section 58 below").

The noble Lord said: The purpose of this Amendment is to make sure that the rate support grant is not used for any purpose other than that for what it is intended. Perhaps I shall be told that this will be included under subsection 2(b), but as the amount involved for the year 1977–78 is £463 million, I should like to make sure. I beg to move.

Lord HARRIS of GREENWICH

This in fact was one of the matters to which I referred in dealing with the speech of the noble Earl, Lord Gowrie, when I said that I would ensure that a letter was sent to him explaining the matter in some detail. To be blunt, it would take a formidable amount of time to explain this question. A letter might be the most sensible way in which to proceed.

Lord CULLEN of ASHBOURNE

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 [Appropriation of sums forming part of Welsh Consolidated Fund and destination of receipts]:

Lord HARRIS of GREENWICH moved Amendment No. 87A: Page 16, line 15, at end insert ("or a purpose for which they are payable out of that Fund under this Act or any other Act of Parliament").

The noble Lord said: This Amendment seeks to close a small but important gap in the provisions contained in Clauses 41 and 42. Clause 41 provides that sums may be paid out of the Welsh Consolidated Fund in two particular sets of circumstances. The first is where they are directly charged on the Fund as, for example, the salary and pension of the Welsh Comptroller and Auditor General—and that matter is dealt with by Clause 50(5). The second is where they are part of sums appropriated for a specific purpose by an Assembly order. Subsection (1) of Clause 42, as it stands, provides that sums may be appropriated only for a purpose for which the Assembly may exercise its powers.

This leaves a gap, since the Bill may provide for sums to be paid out of the Fund (without "charging" them on it in the technical sense of that term) and the purpose of the payment may be one for which the Assembly does not exercise powers. A clear example is the expenses of the Welsh Comptroller and Auditor General's Department. The Amendment closes this gap by providing that any sums payable out of the Fund (but not charged) can be the subject of appropriation orders, even if they relate to matters for which the Assembly itself does not exercise powers other than payment of the money concerned. Such expenditures will thus receive the approval of the Assembly, operating in full session. I beg to move.

The Earl of GOWRIE

I had a question which I wished to ask the noble Lord, Lord Harris, on the last Amendment, but perhaps I am too late. Would that be out of order?

The DEPUTY CHAIRMAN of COMMITTEES

I did not realise that the noble Earl wished to speak to that Amendment but I put it and the Committee has accepted it, so it would be right to go on.

[Amendment No. 87B not moved.]

Clause 42, as amended, agreed to.

Clause 43 [Payments out of Welsh Loans Fund]:

[Amendment No. 88 not moved.]

Clause 43 agreed to.

Clause 44 [Payments into Welsh Consolidated Fund out of moneys provided by Parliament]:

[Manuscript Amendment No. 88E not moved.]

Clause 44 agreed to.

Clause 45 agreed to.

Clause 46 [Short term borrowing.]:

[Amendments Nos. 88A to 88D not moved.]

Clause 46 agreed to.

Clause 47 agreed to.

Baroness LLEWELYN-DAVIES of HASTOE

It may be for the convenience of your Lordships if I now move that the House do now resume.

House resumed.