§ House again in Committee.
§ Clause 63 [Water]:
Lord SKELMERSDALE moved Amendment No. 102A:
Page 27, line 11, at beginning insert ("If it appears to him to be expedient for the purpose of securing a more efficient supply of water").
§ The noble Lord said: In the absence of my noble friends, I am a little lost. However, I shall try to move this Amendment. It relates to placing a limit on the power contained in Clause 63, and makes it quite clear, I hope, that it is only for 1479 the purpose of securing a more efficient supply of water. The reason why this Amendment has been put down is yet again to ensure that the Wrexham and East Denbighshire Water Company will enjoy more or less the same privileges under the Welsh Assembly as it does at the moment. The noble Baroness has answered this point. However, my reading of Hansard is possibly not so quick as her reading of her own answers, so I should be very grateful if on this occasion she would be good enough to repeat her answer.
§ Baroness STEDMAN
It will probably be helpful if I deal with Amendments Nos. 102A and 102B together, as they are connected. Earlier we had two debates about the position of the Welsh Water Authority after devolution. As the noble Lord, Lord Skelmersdale, has said, these Amendments deal with the position after the devolution of the Wrexham and East Denbighshire Water Company. The issues are in many ways analogous.
Clause 63(2) concerns statutory water companies which supply water to an area, most of which is within Wales. At present, the only such water company is the Wrexham and East Denbighshire Water Company, whose area of supply includes part of England but lies primarily in Wales. Geographically, the water company is therefore in much the same position as is, on a larger scale, the Welsh Water Authority. Clause 63(2) accordingly enables the Secretary of State to make provision by order for the water company similar to that which the Bill itself makes for the Welsh Water Authority. Until such an order is made, the responsibility will remain with the Secretary of State.
I am aware that Clause 63(2) has led to some misunderstanding, and the Minister of State at the Privy Council Office has been in correspondence with the water company through Mr. Tom Ellis, MP. I should like to take this opportunity to put on the record the assurance given to him by the Minister of State; namely, that there is nothing in the Bill which will affect the independent existence of the water company. The order under Clause 63(2) will merely allocate existing functions between the Assembly and the Government in the same manner as the Bill itself achieves for the Welsh Water Authority. And as has been made clear in 1480 an earlier debate on Amendment No. 99D, the water authority may not be subsumed under the Bill as it stands. Equally, there is no question of the water company being subsumable. It will remain an independent water company, and only primary Westminster legislation can alter its status.
Amendments Nos. 102A and 102B seek to build safeguards for the company into the order-making procedure under Clause 63(2). May I suggest, however, that full safeguards already exist. The order is subject to Affirmative Resolution in both Houses of Parliament, and I might add that this was so even when orders under Clause 59 were subject only to Negative Resolution. An order under Clause 63(2) is also likely to be considered by the Hybrid Instruments Committee of your Lordships' House. If, as seems not unlikely, the order is considered to be hybrid, it would go before a Select Committee of the House under the procedures of Standing Order 216. Interested parties such as the water company itself would have the right to petition and to be heard before the committee. I suggest that it is better to rely on these very considerable safeguards rather than to try to build in special criteria for the making of orders. Clearly, an order subject to the procedure I have outlined would not be very lightly made.
Turning to the specific reference in Amendment No. 102B to the special Parliamentary procedure, I suspect that this might be a misunderstanding arising from correspondence on the subject. The procedure which I described under Standing Order 216 used to be known as special order procedure but is distinct from special Parliamentary procedure. I would suggest that Clause 63(2) orders are not appropriate for the application of special Parliamentary procedure, which is more often used for planning and land matters.
§ Lord ELTON
The noble Baroness is speaking a little fast. She made a distinction between two different processes. I am not quite sure what those processes are. Could she repeat it at a slightly reduced speed?
§ Baroness STEDMAN
Yes. The specific reference in Amendment No. 102—that 1481 is to say, the second Amendment—relates to the special Parliamentary procedure. We think that this has arisen because of a misunderstanding during correspondence on the subject. The procedure which I described under Standing Order 216 used to be known as the special order procedure but is distinct from special Parliamentary procedure. Therefore, the Clause 63(2) orders are not appropriate for the special Parliamentary procedure, which is more often used for planning and land matters. May I also suggest that it would be wrong to build in a statutory requirement for the Standing Order 216 procedure to apply to Clause 63(2), as that would be to prejudice our own Standing Orders. Even though the noble Lord thinks that I have spoken rather too fast, I hope that these comments have cleared up the point.
§ Lord STANLEY of ALDERLEY
I must apologise both to the Committee and to my noble friends. Before we went to supper I was under the misguided apprehension that we had reached these Amendments. I fully understand that, having dealt with—as I said before supper—the problem of the water authority in Clause 60(1), the same point applies here. I am perfectly happy to leave it at that, but may I thank the noble Baroness for her very full explanation which will be of great satisfaction to that particular body. I apologise to my noble friends for being late.
§ Lord SKELMERSDALE
It is a question of horses for courses. I rather wish that on this occasion the noble Lord, Lord Wigg, was in the Chamber. This Amendment elicited such a full reply that I can only repeat my noble friend's thanks for such a very full answer, which covered not only the water authority but also Parliamentary procedures and quite a lot else besides. The water company concerned will certainly be very grateful for these assurances. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 102B not moved.]
§ 8.8 p.m.
Lord MIDDLETON moved Amendment No. 102Q:
Page 27, line 19, leave out from ("any") to ("shall") in line 20 and insert ("enactment conferring powers upon a water authority").
§ The noble Lord said: Before we deal specifically with Amendment No. 102Q, may I say that we now come to two Amendments to Clause 63, whose general purpose is, in the first case, to provide that the powers of intervention in the interests of the national policy for water for England and Wales should not be limited to the class of enactments set out in Parts III and IV of Schedule 8 but should apply wherever the Secretary of State considers the national policy to be at issue in decisions taken by the Assembly; and, in the second case, to set up a form of machinery whereby a water authority can publicly ask the Secretary of State to intervene and to postpone the effect of any decision taken by the Assembly until a decision on such a request has been made.
§ I referred either yesterday or early this morning to the immense trouble which has been taken by the Government in writing into the Bill the provisions under which it is proposed that the national policy for water in England and Wales is to be protected against decisions of the Assembly. These provisions are contained in Clause 63, Schedule 8 and Schedule 11, which amends the Water Act 1973. There is also a general power of intervention in Clause 34.
§ The drafting of these provisions, together with Part XI of Schedule 2, must have been a considerable task, and one can only read these parts of the Bill with awe and admiration. However, it is felt that the arrangements contained in the Bill to protect the national policy may prove inadequate. The Amendments, which I shall now have to explain in detail, seek to use the provisions already in the Bill and to strengthen and extend them. If we may now come to Amendment No. 102Q, this is a paving Amendment to make way for the Amendments to—schedule 8, Nos. 102J and 102K on the Marshalled List. I should like to speak to those two Schedule 8 Amendments at the same time as this one.
§ The Amendments proposed to Schedule 8 are to extend the specific power of intervention to any action of the Assembly in relation to water matters rather than only to those specific enactments at present listed in Parts III and IV of the Schedule. It is therefore necessary in this Amendment to delete the reference 1483 to the provisions specified in Parts III and IV and to include a reference to the exercise of the powers of the Assembly in relation to enactments conferring powers on a water authority, as the powers of intervention under the Schedule 8 Amendments will apply to all such enactments.
§ I now turn to Amendments Nos. 102J and 102K, which seek to amend the specific intervention powers in the Bill, which are as follows. In relation to water matters, the general powers of intervention are replaced by specific intervention powers, which are dealt with by Clause 63 and Parts II, III and IV of Schedule 8. The scheme is that where a function is listed in either Part III or Part IV of Schedule 8, and these functions are necessarily devolved functions which are also listed in Schedule II, the Secretary of State may intervene if the appropriate conditions which specify it, respectively, in paragraph 2 or paragraph 3 of Part II of the Schedule, are complied with.
§ Part III and Part IV of the Schedule contain a list of enactments, some of which are the same and some of which are different. In relation, therefore, to enactments in Part III, the Secretary of State may intervene if he is satisfied that such intervention is necessary in the interests of the national policy for water in England and Wales. Where an enactment is listed in Part IV he may intervene in the interests of the persons listed in paragraph 3, Part II of the Schedule, these interests being basically those of riparian or fishery owners.
§ Amendments Nos. 102J and 102K are Amendments which are designed to avoid the restriction at present inherent in Part III of Schedule 8. As I have explained, the specific power of intervention into water matters is limited to intervention where action is taken or proposed under the range of enactments listed in that part of the Schedule. These Amendments, and the paving Amendments in Clause 63, are designed to remove this limitation by providing that the Secretary of State may intervene whenever action is taken or proposed by the Assembly under enactments conferring power on the water authorities, where such intervention is required in the interests of the national policy for water in England and Wales.1484
§ I should say that the Amendment in paragraph (b) of Amendment No. 102K is a drafting Amendment and takes in the extension to Part IV intervention proposed by a later Amendment, No. 102N on the Marshalled List. I beg to move.
§ 8.15 p.m.
§ Baroness STEDMAN
It might be convenient to the Committee if, in reply to Amendments moved by the noble Lord, I go rather wide and cover the whole field of the paving Amendments to Schedule 8, which we shall be discussing later, as it may save time in the long run and save much repitition. I shall not rehearse again what we have said time and time again; that is that the Government feel that water is central to the domestic matters of everyday concern to the people of Wales, and also that we take account of the fact that the Wales-England Border does not necessarily follow the hydrological boundaries. That still applies in a preface for all these Amendments.
We have to take into account the fact 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 policies and for English holders of statutory rights of water. The Government have recognised this by reserving responsibility for 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 the overall policy; and by providing (under Schedule 8 to the Bill) for a special intervention procedure to protect the interests of the England and Wales policy and the statutory interests in England.
The Amendments that come under this general heading would limit the Assembly's powers or would enable, or even require at the behest of the Water Authorities, such major intervention by the Secretary of State in relation to the Assembly's functions as to destroy the balance between the devolved and reserved interests described earlier. They would do so in two ways. First, by extending the list of functions in Part I of Schedule 8 to be exercisable by the Secretary of State for the whole of the Severn-Trent area, the amendments would deny the Assembly 1485 any role in relation to important policy matters within the Welsh part of the Severn-Trent area and would confuse the whole relationship between the Severn-Trent Authority and the Assembly.
The purpose of Part I of Schedule 8 is to provide for either the Assembly or the Government to exercise functions which can only sensibly be applied to the whole area of a Water Authority. But the functions which the amendments would add to Part I of the Schedule are readily divisible between the Assembly and the Government depending upon whether they relate to England or Wales. The effect of adding provisions to Part I, is that while it would reduce the consequences of devolution for the Welsh part of the Severn-Trent Authority, it would extend them for the English parts of the Welsh Authority. It may be that the sponsors did not intend this. It is, however, no solution for the Assembly to be given the same functions for the whole of the Welsh Authority area since this would create an equally unsatisfactory situation for the Government in relation to the English parts of that area.
Secondly, they would so widen the range of matters covered by Parts II, III and IV of Schedule 8 that the Secertary of State could intervene in almost any action the Assembly might take. But, worse, the Secretary of State would be compelled to intervene if a water authority applied to him to do so. It is a constitutional absurdity for a nominated body, deliberately made accountable for its Welsh activities to the Assembly, to be able to by-pass the Assembly or to be able to require a Government Minister to intervene against the Assembly on the body's behalf. This we see as a real recipe for conflict.
We think that the scheme for water presented in the Bill is fairly balanced. It gives the Assembly a significant role in Welsh decisions and at the same time it maintains the essential policy framework on an England and Wales basis. Moreover, the Government believe that they have already listed in Parts III and IV of Schedule 8 the powers which are of significance for the protection of the England-Wales water policy and of statutory interests in water in England. The Government completely reject 1486 Amendments which, even if it is not their purpose, would frustrate the scheme for devolution of water functions to the Assembly and would also have inappropriate consequences for people living in the English parts of the Welsh Water Authority's area. If the Assembly were to promote in any way a water policy which was in conflict with the national policy of England and Wales, it would be in breach of its statutory duty under the Water Act 1973. Therefore, we think that enough safeguards have been built into the Bill.
§ Lord SKELMERSDALE
Would the noble Baroness regard it as a retrograde suggestion that the Welsh Water Authority should be responsible to the Assembly for the whole of its area and that the Severn-Trent Water Authority should be responsible to the Secretary of State for the whole of its area?
§ Baroness STEDMAN
Here we have the difficulty that part of the area is in Wales and part is in England and we think we have solved those problems in the way in which we have arranged the Bill at the moment.
§ Lord SKELMERSDALE
Would it be so disastrous to make the Welsh Assembly responsible for a part of England as regards water and water pollution and for the same reasons to have part of Wales under London?
§ Baroness STEDMAN
I would not necessarily say that it would be disastrous but I think it might not be quite tidy administratively. I should certainly be happy to look at that point although I cannot offer any satisfaction to the noble Lord at this time.
§ Lord MIDDLETON
I am most grateful to the noble Baroness for her usual detailed reply. She has replied to Amendments Nos. 102D to 102H and I shall certainly bear those replies in mind when I come to those Amendments. In effect, I have been saying that the arrangements in the Bill providing the Goverment with sufficient powers to protect the national water policy are inadequate and, in effect, the noble Baroness is saying that they are sufficient. I am advised that the range of circumstances where the interests of the national water policy for England and 1487 Wales may be affected by actions taken or proposed by the Assembly is greater than the list of enactments set out in Part III of Schedule 8. I am further advised that it is not possible to conceive in advance a complete list of all the enactments where the Secretary of State may find it desirable to intervene in the interests of the national policy. But it is certain that the present list is too limited.
To give an example, water is supplied for non-domestic purposes by way of agreements under Section 27 of the Water Act 1945, but the water authority concerned has a general obligation to provide such supplies on reasonable terms as determined by the Secretary of State. That power is devolved to the Assembly, which may secure that water is supplied by, say, the Severn-Trent Authority to consumers in Wales on different and possibly preferential terms to those on which it is supplied in England. I thought that particular case would be caught by Part I of Schedule 8 but I am advised that this is not necessarily so and that the Secretary of State might not be able to intervene in such a situation.
I do not think that these proposals would frustrate the Assembly. After all, they are an extension of the existing intervention powers which the Government realised were necessary in order to regulate matters if the national policy is in any way in danger. These are complicated matters and I think my noble friend and I would be well advised to study the reply given by the noble Baroness before possibly taking more vigorous action to improve the water provisions in the Bill. I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.24 p.m.
Lord MIDDLETON moved Amendment No. 102R:
Page 27, line 21, leave out ("Part II") and insert ("Parts II and III").
§ The noble Lord said: This is a further paving Amendment to make way for the new Part III of Schedule 8 proposed by Amendment No. 102P, so perhaps it will be convenient if I speak to Amendment No. 102P at the same time. The new Part III of Schedule 8 is designed to serve a completely different purpose from 1488 the existing Part III, so that, whereas at the moment the powers of the Assembly are only subject to the conditions of intervention specified in Part II of the Schedule, under these proposals they will also be subject to the conditions in Part III.
§ If I may refer now to Amendment No. 102P, despite the extension of the powers of intervention—if they are extended—whether the powers are exercised will still be a political decision. The Amendment is designed to ameliorate the position by providing for automatic intervention on an application by the water authority. The Amendment is wide in scope but merely transfers the power back to the Secretary of State who may, of course, exercise it in the same way as would be proposed by the Assembly. I beg to move.
§ Baroness STEDMAN
I am afraid I am not being very helpful to the noble Lord tonight. As I mentioned in my general remarks covering the whole range of these Amendments, this really is quite the most incredible Amendment of all those which have been tabled on the water provisions. It enables a nominated water authority, which the Bill deliberately makes fully accountable to the elected Assembly, to go over the head of that Assembly to compel the Secretary of State to intervene in any matter arising between the authority and the Assembly. This would create tremendous constitutional problems. It would make nonsense of the Assembly's status and responsibility and would cause tremendous friction between the Assembly and the water authorities as well as between the Assembly and the Government. I hope the noble Lord will think again about it.
§ Lord STANLEY of ALDERLEY
I wonder whether I may go back to the suggestion put forward by my noble friend Lord Skelmersdale, which I thought was sympathetically received by the noble Baroness, regarding the two water authorities having their own areas. I think the noble Baroness said that she would look into it and I wonder whether it would be possible for her to say what are the snags of such a possible scheme?
§ Baroness STEDMAN
There are all the problems about the different areas for the different water authorities, about 1489 financial provisions for them, about trying to keep standards the same over the whole of the United Kingdom, and there would be tremendous administrative problems if we tried to move part of a water authority's area into another part to be administered. But, as I have said, I shall look at it again and I will write to the noble Lords.
§ Lord MIDDLETON
This is another Amendment designed to protect the national water policy in England and Wales and it is one that arises from the fear that the duty to promote a harmonious national policy laid on the Welsh Assembly by the Amendment in Schedule 11 to the Water Act 1973, to which the noble Baroness has referred, is vague and unenforceable. I suppose in practice the national policy for water in England and Wales does not really exist, except in the broadest outlines or concepts. The policy is determined from case to case as matters come up for consideration by the Minister.
The Amendment is designed to provide the Secretary of State with notice of actions taken or proposed by the Assembly so that he may consider whether if he had to make the decision in the light of his views of the interests of national policy, he would make the same decisions. I think the noble Baroness said that the application could be made on any matter whereas the Amendment says that it must be a matter where the interests of the national policy are in question; not any matter—that would be far too wide. I think the Amendment is a reasonable one but here again I believe we should study with great care the reply given on behalf of the Government and I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.29 p.m.
§ Lord RAGLAN moved Amendment No. 102C:
Page 27, line 23, at end insert—
("(4) Without prejudice to subsection (3) above, with a view to the promotion of common policies and practices within any water authority area which lies within both England and Wales in respect of matters mentioned in section 1(2) and (3) of the Water Act 1973, the Assembly and any Minister of the Crown concerned with the exercise of powers (other than powers specified in subsection (1) above) relating to such matter, which, in the opinion of the
Assembly or the Minister or the Authority, would affect those policies and practices, shall consult together before exercising such powers and, without prejudice to the foregoing generality, in any case where in exercise of any such powers either the Assembly or any such Minister determines to cause a local inquiry or hearing to be held the inquiry or hearing shall be held by the Assembly and the Minister jointly.")
§ The noble Lord said: I beg to move this Amendment in the name of myself and my noble friend Lady White, who unfortunately cannot be here. This is an Amendment which I think it is fair to say is designed to facilitate the harmonisation of policies and procedures as between the Welsh Water Authority and other authorities. As my noble friend Lady Stedman has just said, and as has been said earlier in the Committee proceedings, the Welsh Border does not follow the boundary of the Welsh Water Authority, which is a hydrological one. The Welsh Border was invented in the 16th century as a device to help cope with problems arising out of the feudal ownership of land, and in the 20th century it performs, as I believe, no useful purpose. That is my opinion. There it is, unfortunately. It follows the course of rivers like the Dee, Lugg Monnow, Wye, going overland in between, whereas the Welsh Water Authority's area of administration is bounded, understandably and purposefully, by the watersheds of these rivers located on the English sides.
§ My noble friend Lady Stedman said, at about 2.19 this morning, that the Bill 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. But I think we deduced from some remarks she made a few moments ago that the matter is very much more difficult and complicated than that. Where an area of the Severn-Trent Water Authority lies within the geographical area of Wales there is a fairly intricate tie-up between the two authorities. The way it works, as I understand it, is that the Welsh Water Authority acts as a kind of landlord to the Severn-Trent Authority, which otherwise has charge of all the normal functions which river authorities perform. In administering their area, the Welsh Water Authority have consultations to perform, which are complicated by the fact that the area at present under the 1491 Welsh Office stops short of the area under the water authority. Before confirming by-laws, for instance, they have to consult the relevant Ministry in England and at the same time keep the Secretary of State for Wales informed. They also keep a close liaison with two of their neighbouring English counties, Cheshire and Hereford and Worcester; though why only those two when there are two others, Shropshire and Gloucester, along the border, I have not yet learned.
§ To help them with the discharge of their duties the authority at present has 35 members, 20 of whom are from the eight Welsh counties and two of the English counties and nominated by elected authorities; 10 members and the chairman are nominated by the Secretary of State, and four members are nominated jointly by the Secretary of State and the Minister of Agriculture. Somewhere in the Bill—where is is I do not know because the cross referencing, I have found, is so complex—it is laid down that the Assembly will have power to control all those appointments at present made by the Secretary of State and those which are nominated by the Welsh local authorities. The Assembly would be required to retain on the authority the four nominees appointed from the counties of Hereford and Cheshire and one member jointly nominated by the Secretary of State for Wales and the Minister. However, as the Bill stands, there will be no duty laid upon the water authority or the Assembly to keep the Secretary of State for Wales informed on all matters about which it is in consultation with the Severn-Trent Authority, and there will be no requirement for it to consult neighbouring authorities on matters of water and other policy. Nor is there provision that inquiries and hearings shall be held jointly by the Assembly and the Minister, something which surely is essential.
§ The Welsh Water Authority is a statutory agency which wants only to perform its functions to the best of its ability. One of its functions, in its view, and indeed one of the principal reasons for its being given responsibility within its present hydrological boundaries, is to avoid inconsistent policies and practices as between one side of a river and another. In the authority's view, the Bill provides no real safeguards against this happening. 1492 As I understand it, the Government argue that, because the authorities will initiate the action to which the divided powers apply, consistency on the separate exercise of these powers by the Secretary of State for the Environment or the Minister of Agriculture and the Assembly will be assured. However, there is no reason, in my view, to suppose that this will follow, bearing in mind the emphasis which is being placed on the constitutional independence of the Assembly and the English Ministers.
§ The Government appear to argue that if on rare occasions the possibility of different practices in England and Wales arose because of differences of view between the Assembly and English Ministers, these would surely he discussed between the two administrations to overcome the difficulties. But there is no provision in the Bill for such consultations, and indeed I understand that this absence has arisen from a conscious view that the Assembly should not be obliged by the Act to have consultations but only to have them if it so chooses. Since there is no recognition in the Bill of even the possibility of difficulties arising from the application of different policies in the Welsh and English parts of the Welsh Water Authority area, the authority believes that it is unrealistic to suppose that the newly-separated administrations will not be very jealous of their independence and correspondingly reluctant voluntarily to adopt consultative procedures that must constrain their independence.
§ The Welsh Water Authority feels that an effective safeguard would be provided by the inclusion in the Bill of a requirement that the exercise of any powers, by either the Assembly or the English Ministers, in relation to any functions of the Welsh Water Authority or the Severn-Trent Authority in regard to which a common policy or practice throughout the authority's area was necessary, should be subject to prior consultation between the Assembly and the relevant English Ministers, and in cases where a public inquiry was to he held, by the setting up of a joint inquiry by the Assembly and the relevant Minister. An explicit definition in detail of all the circumstances calling for a common policy or practice would hardly be practicable. The Amendment, I think, would cover all that is necessary.1493
§ I could go into further details but I will not detain the Committee much longer. I share the Authority's concern that the effective provision of water services could be impeded by having two different sets of land drainage or fishery by-laws operating on the two sides of the mid-line of a single river, or by having one fishing licence to fish from one bank of a river and another licence to fish from the other bank. We hope it would not happen, but it might. I therefore beg to move.
§ Lord MIDDLETON
I so much agree with nearly everything which the noble Lord has said about these problems, indeed they are the very problems which are prompting me to produce very complicated Amendments from this side of the House. As he so rightly said, the Bill provides no real safeguards against inconsistencies between those areas under the responsibility of the Assembly and those under the responsibility of the Secretary of State. I am a little doubtful about how effective a safeguard this prior consultation will be, followed by possibly the joint inquiry. That is my doubt, although I so much agree with everything else which the noble Lord has said about the problems involved.
§ Baroness STEDMAN
As my noble friend has said, the purpose of his Amendment is to try to ensure the continuation of common policies and practices throughout the area of the water authority after devolution, allowing for the fact that both the Severn-Trent and Welsh Water Authorities operate in England as well as Wales and therefore will be responsible to the Assembly in Wales and to the Government in England. There is nothing wrong with that and we think that the Bill has dealt with it.
The Bill is not cluttered with provisions about consultation between Government and Assembly, but it clearly implies that there will have to be close consultation on a very wide range of subjects, not just on water policy. The Assembly will have a role in helping to shape the water policy, but the protection of the national policy cannot be achieved through general powers of direction. Protection is achieved through the duty of the Assembly to promote a water policy which is in harmony with that for England and Wales as a whole and 1494 the ability of the Government to intervene if it is necessary when particular water schemes are put forward.
We have given a great deal of thought to these proposals for water. We have set out detailed proposals to ensure the continuation of a national water policy in England and Wales and we have required the Welsh policy for water to be in harmony with it. We have also tried to identify those situations in which it is essential that we have identical policies and practices within a single water authority area so that they can be listed in Part I of Schedule 8. Perhaps inevitably, the Government do not necessarily see eye to eye with the water authorities about this or with my noble friend and noble Lords on the other side who have no doubt been lobbied as we have by the water authorities.
But the authorities, not surprisingly, are concerned about the administrative inconceniences of being accountable to two administrations and of perhaps having two sets of by-laws. The Government are concerned to provide a meaningful degree of devolution for the Assembly and that must allow for the possibility of differences between England and Wales, but it does not necessarily mean that the byelaws in Wales will contain substantially different provisions from those in England or that different banks of the same river will be subject to divergent requirements.
There is a natural fear that a new administration will want to change things significantly and upset perhaps the accustomed way of life. I suspect that there is a similar fear that it will be unversed in the problems it faces and to preserve its independence will be reluctant to look for advice. We do not share those fears or that apparent mistrust of the Assembly. The Wales Bill, like the Scotland Bill, is not cluttered with statutory requirements for consultation between the Assembly and the Government but it is nevertheless inevitable that there will have to be close consultation on a wide range of subjects, including water. In the Government's view, it is unrealistic to assume an unwillingness on the part of the Government and the Assembly to consult and co-operate on common problems. If the Amendment were to be pressed and adopted it would do nothing to ensure that meaningful 1495 consultations would take place; indeed it might be more likely to create that atmosphere of mistrust which it presumably wants to avoid. And it might carry the unfortunate implication that subjects other than water also do not require consultation with the Government. Further, there will be nothing to prevent the Government and the Assembly jointly setting up inquiries where both consider that it would be advantageous. So, we think that the Amendment is both unnecessary and undesirable. and we hope that it will not be pressed.
My noble friend referred to the question of appointments, who made them and how they were made. Perhaps it might be for the convenience of the House if we leave that point until we get to Amendments Nos. 109F to J to Schedule 11, because they deal with the breakdown of appointments and that might be a better stage at which deal to with this matter in more detail.
§ Lord ELTON
Before my noble friend returns to this matter if he intends to do so or, indeed, the noble Lord, Lord Raglan returns to it, I should like to say at this convenient juncture that we are aware on this side of the Committee that water is an essential and emotive matter which must be looked at with the greatest care and that there are few areas of this or indeed any other Bill that I have come across, which are constructed with such complexity. I do not speak in criticism of the draftsmanship although I wish that it had been possible to express the Government's intention in a form if not in language, more easily assimilated by the layman that most of us are. However, I think that this is sufficient reason for saying that we should like to take counsel on these matters when they have been elicited.
Of course, there is a very wide area covered by this succession of Amendments and I expect that the noble Baroness, Lady Stedman will also want to form a view when she has heard what is said as regards the other Amendments. However, I am grateful to her for her extensive reply and I hope that the eagerness which we all have to retire early today will not in any way inhibit her from replying equally extensively at each stage because that will make it easier for us to come to the right conclusion before the next stage of the Bill.
§ Baroness ELLIOT of HARWOOD
The noble Baroness, Lady Stedman, has given us a very long and interesting reply. However, along with the noble Lord, Lord Raglan, I do not sec how—unless there is something which safeguards the complicated business of rivers with one bank in one section and another in another section, and unless there is some power with a body other than the Assembly—we can be sure that the matter will not become greatly tangled.
In Scotland we have this very problem with the River Tweed. That is a very important river with one bank in Scotland and another in England—the estuary is in England and the river rises in Scotland. I am full of anxiety about this matter, because I think that, unless there is some proposal put into the Bill for both Wales and Scotland, we are really storing up a lot of problems. I should have thought that it was much better to try to do it now during the Committee stage when we can discuss the matter and then study it again on Report. Although I realise that the Government think that everything in the garden will be lovely, I am very anxious as regards this particular subject which is highly controversial locally and about which it is difficult to get people to agree, unless there are some kind of guidelines laid down. The Amendment of the noble Lord, Lord Raglan, although long and complicated, does at least give some guidance. Although the Minister will not accept it now, I hope that the Government will think again and give us another opportunity to discuss what I believe to be a vital matter which cannot just be left to chance.
§ Lord STANLEY of ALDERLEY
I should like to support the Amendment of the noble Lord, Lord Raglan, for one reason only, namely, that I gather that the water authorities themselves are concerned. I should have thought that that gave cause for us to support it. Indeed, I am sure that the noble Baroness who always takes so much trouble when replying to these matters might make a few inquiries of the water authorities to see how they feel about it, because, after all, they will be the people who have to do the job in the end.
§ Lord RAGLAN
I am bound to say that I agree with the noble Baroness, Lady Elliot of Harwood. I have sat here for a 1497 good many hours and often when I have looked around the Chamber—as I look around it now—I have discovered that I am the only member of the chosen race actually present. In other words, I have sometimes been the only one out of over 40 noble Lords who actually lives in Wales and to whom the provisions of the Bill would apply. I would be an elector to the Assembly; I think I am even eligible to be a Member of it. As a Welshman, up till now my head has been ringing with the praise which the Government have been heaping on me: how brilliant, how capable, how judicious and, above all, how reasonable. Yet the very first time that I move an Amendment I am turned down fiat by my noble friend. I must say I am extremely disappointed.
I think my noble friend is being very much more sanguine about this matter than many people are and they are not just from outside Wales, they are from within Wales. My noble friend talked about administrative convenience, and the slight differences that there might be between the Welsh Water Authority area and other areas, and so on. Parliament, when passing the 1973 Water Act, actually took the trouble to write into the Act a consultative procedure or requirement, of a kind. It is contained in paragraph 42 of Schedule 3 to the Act. Time and again when listening to debates on this Bill I have felt that a reasonable test of what ought or ought not to go into this Bill might be whether, if Parliament were setting up an English Regional Assembly, they would take certain precautions. Because it is a Welsh Assembly they feel that they ought not to take precautions. They took precautions over the Water Act; why should they not take precautions under this particular Bill? At any rate, I have aired my views on the matter. I shall read with interest what my noble friend has said, and, with the permission of the Committee, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 63 agreed to.
§ Schedule 8 [Water]:
§ 8.54 p.m.
§ Lord MIDDLETON moved Amendment No. 102D:1498
Page 65, line 40, at end insert—
("The Public Health (Drainage of Trade Premises) Act 1937 (c. 40) sections 3 and 4.
The Rivers (Prevention of Pollution) Act 1961 (c. 50) sections 5 and 6.
The Public Health Act 1961 (c. 64) sections 60 and 62.
The Water Act 1945 (c. 42) sections 12 and 13(4) and (5).
The Water Resources Act 1963 (c. 38) sections 107 and 108(4).").
§ The noble Lord said: The Amendments to Part 1 of Schedule 8, Amendments Nos. 102D, 102E, 102F, 102G and 102H, have a common purpose which is, as the noble Baroness said, when she replied a little earlier, to extend the range of functions exercisable by the Secretary of State and by the Assembly, regardless of national boundaries. It may be convenient if I speak to all five of them now. Part I of Schedule 8 and Clause 63(1) provide the enactment one might call the deemed national provision. In effect, Clause 63(1) provides that for the exercise of the enactment listed in Part I of Schedule 8 the national boundary shall follow the boundary between the Welsh and Severn-Trent Water Authorities. This will mean that the powers in the enactment will be exercisable by the Secretary of State in relation to the Severn-Trent and by the Assembly in relation to the Welsh Water Authority, regardless of the national boundary.
§ These Amendments seek to build upon this provision by extending the range of functions specified in Part 1 of Schedule 8. The provisions now specified in the Bill are limited to matters concerning the constitution of the water authorities and certain powers as to charges. These Amendments seek to include powers in connection with appeals of one sort or another, the exercise of which directly affects the execution of the national policy for water for England and Wales.
§ I am bound to say that while these Amendments ameliorate the position so far as the Severn-Trent is concerned by reserving these powers to the Secretary of State alone, they may be taken to worsen the position for the English part, the Welsh Water Authority area. This is a lower image of the Severn-Trent portion. Extending the range of enactments listed in Part I of Schedule 8 will mean that the Assembly will exercise those powers in relation to the English part of the Welsh 1499 Water Authority's area. If required I could deal with each one of the specific powers sought to be included in Part I of Schedule 8 section by section, enactment by enactment, and give detailed reasons why it is thought desirable that they should be so treated. If I were to do so we should certainly not get through the Committee stage this week, and probably not next week either.
When the noble Baroness spoke about these Amendments in reply to Clause 63 she did rather brush them aside as being wrong and unnecessary, so perhaps the Committee will allow me to deal with one or two of the points by way of illustration. Under Amendment No. 102D it is proposed to insert the Water Act 1945, Sections 12 and 13(4) and (5). Section 12 deals with bulk supplies and subsection (5) provides:
where it appears to the Secretary of State that it is expedient that one water authority should give to another a supply of water in hulk and he is satisfied that the giving and taking of such a supply cannot be secured by agreement he may by order require the respective authorities to give and take such supplies at such periods and on such terms and conditions as may be provided in the order".
This section could be used by the Assembly, if the powers were devolved, to require Severn-Trent to take a supply of water from the Elan Valley reservoir on terms dictated by the Assembly, including a provision for a profit on water export. Section 13(4) and (5) provide for the Secretary of State to transfer the functions of a water authority to himself if he finds it in default of its duties to supply water. It is considered that these wide-ranging powers should not be passed to the Assembly in relation to Severn-Trent.
§ In regard to Amendment No. 102F may I make a general comment on the reasons for including these sections of the Salmon and Freshwater Fisheries Act 1975. In relation to fisheries it is important to bear in mind that the River Severn contains important commercial salmon fisheries. The spawning areas are in the upper and Welsh part of the river, while the netting area where the profit accrues is in the English area. It is therefore of little benefit to the Welsh interests in conserving salmon fisheries to the possible prejudice of trout and coarse fishing. It is therefore important that the fishery should be managed as a whole so 1500 that the various competing interests can be reconciled.
§ Amendments Nos. 102G and 102H relate to land drainage. Certain sections already appear in this part of the Schedule. The first group relate to the constitution of the regional land drainage committee in the Severn-Trent and the Welsh Water Authority. The other sections relate to certain powers of the Lord Chancellor in matters concerning charges. Inclusion of the new sections proposed would cover such matters as the designation of a particular section of the water course as main rivers. The amount of main river determines the level of the water authorities' expenditure on the land drainage function. It is important that main river policy is consistent throughout a river basin. The proposed Amendment also seeks to include matters relating to by-laws, because it is important that standards should be consistent, as the noble Lord, Lord Raglan has just said, throughout a river basin.
§ Section 84 of the Land Drainage Act 1976 contains a provision for appeals against a precept to the Minister. It is considered that this power should not he devolved lest the Welsh be put into the path of temptation to load costs onto English consumers by reducing the precept to internal drainage boards in the Welsh part of the Severn-Trent Authority area. I think that that is sufficient to indicate the reasoning behind the Amendments in Schedule 8, up to and including No. 102H. I beg to move.
§ 9.1 p.m.
§ Baroness STEDMAN
I am grateful to the noble Lord, as I am sure the Committee is, for taking a whole lot of Amendments in one go. Amendment No. 102D would add to the list in Part I of Schedule 8 certain provisions which deal with the control of water pollution, agreements for the bulk supply of water and default powers over water authorities. We do not believe that a general political division of ministerial responsibilities on the basis of water authority boundaries instead of the England-Wales boundary would be acceptable to the English parts of the Welsh Water Authority, to the Welsh parts of Severn-Trent or to England and Wales as a whole.
But the co-ordinated management of river basins is retained by the water 1501 authorities themselves, who carry out most day-to-day functions. It is these authorities who will initiate action and provide much of the information and advice on which the Assembly will judge how to exercise its functions. The Assembly will be composed of people—like my noble friend Lord Raglan—with a great deal of knowledge and practical experience of the whole range of interests, and I am sure that they will not be rushed into uninformed decisions which create incompatible situations between the English and the Welsh parts of a water authority area. Further, the Assembly will be working within the national policy for water in England and Wales and there will be a great deal of discussion with the Government on policies and objectives. I cannot see, in these circumstances, why it should be suggested that the Assembly is likely, for example, to tolerate higher pollution of rivers and streams than might be tolerated in England, with detriment to English interests lower down those streams.
Of course, it is true that such a possibility might occur and perhaps the Bill should cater for it. But it does cater for it, and in a way which I suggest is more appropriate than the proposed Amendment. Many of the provisions dealt with in the Amendment are concerned with discharges into rivers. These are in large part prospectively repealed and will be replaced by the equivalent provisions of the Control of Pollution Act 1974. These provisions of the 1974 Act are already listed in Part 1V of Schedule 8, so the Secretary of State will be able to intervene if the Assembly allows unacceptable discharges into rivers flowing into England
Equally, the Government would accept that some other provisions dealt with by the Amendment might have implications for national England and Wales water policy. Examples are Sections 12 and 13 of the Water Act 1945 and Section 108 of the Water Resources Act 1963. But the Bill already lists these provisions in Part III of Schedule 8, so the Secretary of State will be able to intervene if these powers are exercised by the Assembly in a manner which is prejudicial to national water policy.
I pass on to the next Amendment, No. 102E. Again, the same general arguments apply as were used on the 1502 earlier Amendment. The only provision of this Act which we believe needs to be listed in Part I of Schedule 8 is Section 52, which enables the Secretary of State to order that water authorities may make charges in relation to consents for discharges of trade or sewage effluent. Clearly, the same scheme of charges needs to apply throughout the water authority area. The Bill already provides for this, and the Government believe that all other functions can and should be split on the normal England-Wales basis. Where it is necessary to safeguard English interests downstream, the Bill already does so, because it lists the appropriate provisions of the Control of Pollution Act in Part IV of Schedule 8—thus enabling intervention by the Secretary of State.
Amendment No. 102F is concerned with the Salmon and Fresh Water Fisheries Act and the fish in the rivers and similar matters. The Government consider that these are matters which can be dealt with by them or by the Assembly in respect of England and Wales, but other powers under the 1975 Act require special intervention procedures and these are provided for in Part IV of Schedule 8. Sections 26 and 28 are examples of this.
I turn to the two final Amendments on the powers of the Land Drainage Act. These are already listed in Part I of Schedule 8. They relate to the constitution of Regional Land Drainage Committees and Local Land Drainage Committees, to general drainage charges and to charges option orders which are made on the application of a water authority. These arrangements have to apply uniformly throughout an authority area.
In general, the Government consider that the additional provisions listed in this group of Amendments can and should, for the same general reasons I have given before, be split on a simple England-Wales basis. However, I may bring some joy to the heart of the noble Lord, Lord Middleton, when I say that in so far as his last two Amendments are concerned, we have been reviewing more generally the effect of the Bill on the arrangements of internal drainage boards which may straddle the England-Wales Border. We are still considering the issues and although the Government's approach will, of course, be on the same principle that I have already described, we shall be bring- 1503 ing forward any necessary Amendments at the Report stage in relation to the land drainage provisions. Therefore, I hope that the noble Lord will read carefully what I have said and perhaps not press any of his Amendments.
§ Lord MIDDLETON
I am sure that we must be grateful for the final words of the noble Baroness and, of course, we shall read with very great care her very carefully reasoned reply, for which I am extremely grateful. The noble Baroness is more optimistic about the smooth running of the water arrangements than are my noble friends and I. I think that the inconsistencies to which so many noble Lords have referred tonight are bound to occur. I do not see the water arrangements running smoothly under the Bill as it is at present, as the noble Baroness says. However, we shall look very carefully at what she has said and perhaps return to this at a later stage. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 102E, 102F, 102G, 102H, 102J and 102K not moved].
§ 9.7 p.m.
Lord MIDDLETON moved Amendment No. 102L:
Page 66, line 31, after ("water") insert ("or tidal waters").
§ The noble Lord said: I hope that perhaps the noble Baroness will be able to meet us on this Amendment, which can be taken on its own. In the tidal part of the River Severn there is an anomalous situation where, by virtue of ancient grants, certain persons claim rights to private fishing. The Amendment is designed to extend the protection to persons owning such rights. I beg to move.
§ Baroness STEDMAN
I am sorry that I cannot oblige the noble Lord this time. We think that this is another Amendment that would increase the scope for intervention by the Secretary of State, and really we do not think we could accept it at this point.
§ Lord MIDDLETON
I am disappointed about this because provision is made for owners in all other kinds of water. There are apparently people who claim rights to just the very end of the Severn where the 1504 tide comes in, and I should have thought that if you could give the rights throughout the whole of the river, then for the bit at the end where the fish are coming in with the tide the provisions in the Bill could have been extended towards them. I believe it is considered in some quarters that the claims to these rights are dubious, but this does not affect the validity of the Amendment, because if the claims are established protection is needed, and if the claims are not established protection does not apply as it only goes to persons owning such rights and not to persons claiming such rights. I hope that the noble Baroness will look at this. It is very nearly a drafting Amendment.
§ Baroness STEDMAN
The noble Lord has been very gracious and generous. Yes, all right; I shall take it back and have a look at it.
§ Amendment, by leave, withdrawn.
§ 9.9 p.m.
Lord MIDDLETON moved Amendment No. 102M:
Page 66, line 34, leave out ("and").
§ The noble Lord said: This is a drafting Amendment paving the putting in of a new sub-paragraph by virtue of Amendment No. 102N, so it will no doubt be convenient if I speak to both of them together. The Amendment to Part II of Schedule 8 which is listed as No. 102N is designed to strengthen the power of intervention. This is another possible way of doing it. We feel that these intervention powers are not strong enough under the Bill.
§ Despite Amendmnt No. 102K, about which we spoke earlier, there may be cases where the interests of a group of consumers may be affected by where intervention is not justified in the interests of national policy because it may be a very localised effect. This Amendment is designed to rectify that situation. As an example, a group of consumers of water supplied by, for instance, the Severn-Trent Authority, may find that the water quality changes by virtue of actions committed by the Assembly in Wales, and this may increase their costs where they have plant designed to accept water of a particular quality. That is an example of the kind of case that is not covered and we think should be. I beg to move.1505
§ Baroness STEDMAN
This Amendment is a purely drafting Amendment, as the noble Lord said, and the second Amendment, No. 102N, adds any person for whom a water authority provides services (that is the general public) in the interests on behalf of whom the Secretary of State may intervene. We are not happy at this extension of powers of intervention for the Secretary of State. We think they are extensive enough, taken together, to make a nonsense of devolution. The Assembly will be constantly looking over its shoulder while, on the other hand, the existence of wider powers may result in the Secretary of State constantly being bothered to intervene on a host of what might be trivial local matters. In view of the way that the noble Lord has dealt with these Amendments we will take them back and look at them.
§ Lord MIDDLETON
I am most grateful. I think that this is one that could be looked at, and I am grateful for what the noble Baroness has said. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 102N and 102P not moved.]
§ On Question, Whether Schedule 8 shall be a Schedule to the Bill?
§ Lord LLOYD of KILGERRAN
From time to time I have endeavoured to intervene, but things have been moving so fast that I have not been able to get in, as the noble Lord, Lord Wallace of Coslany, is indicating by nodding his head. I do not propose to delay the Committee. I have been following the noble Lord, Lord Middleton, because he has been reading almost word for word in certain passages from documents which have also been supplied to me by the South Severn and Trent Authority. I had hoped to ask the noble Lord why the Severn and Trent Authority were so worried about the lack of safeguards in the Bill for the matters to which he referred. My view is that the noble Baroness, Lady Stedman, has replied fairly fully with regard to the difficulties which the noble Lord, Lord Middleton, has raised. I do not propose to delay the Committee at this stage with all the papers I have. I shall read very carefully what the noble Baroness 1506 has said, and consider that matter at a later stage.
§ Lord ELTON
It may be worth saying at this stage that I do not think there is any criticism imputed to my noble friend by the noble Lord, Lord Lloyd of Kilgerran. It is not only an accepted, but also an extremely valuable practice for noble Lords who are Members of your Lordships' House, and who are extremely busy outside it, to supplement their own knowledge by detailed briefs from interested parties who have retained counsel to give advice. Therefore, the question here seems perfectly fair. It is worth remembering that this is a recognised way in which we operate. Indeed, I have received contradictory briefs from different sources. One then has to sit in judgment upon them because one cannot propose both.
§ Lord LLOYD of KILGERRAN
I have no idea why the noble Lord, Lord Elton, is so helpful to me at this stage of the evening. It was my intention to be helpful in the debate by indicating to the noble Lord, Lord Middleton, that I have the same papers as he has, and so I did not want to repeat what he was saying. The noble Lord, Lord Elton, says, on the one hand, that I am fair, but then appears to indicate that there may be something wrong in the attitude I have adopted. If that is not so, I cannot understand his intervention.
§ Lord ELTON
We do not want to waste time on this point. I was not criticising the noble Lord. I was merely wishing to say that the debate has been followed outside the Chamber very critically by people who are anxious to learn how what is being proposed works. The noble Lord's remarks, taken in isolation and in print, when the inflection in his voice would not be there to explain what they meant, could be taken as a criticism of what is a very profitable and practical process.
§ Baroness STEDMAN
I am quite sure that the noble Lord, Lord Lloyd of Kilgerran, did not intend any criticism in regard to the way the noble Lord, Lord Middleton, has handled the Amendments. Like other Members of the Committee, we on the Government Front Bench have also been bombarded by the Severn and 1507 Trent Water Authority. We have tried in the course of the debate to put our arguments against the fears and doubts of the Severn and Trent Water Authority. I hope that I have succeeded, and I hope that when the Severn and Trent Water Authority reads the report of the debate, it will perhaps understand some of the thoughts behind the Bill, as well as in the way in which we are hoping it will operate.
§ Schedule 8 agreed to.
§ Clause 64 [Planning]:
§ On Question, Whether Clause 64 shall stand part of the Bill?
§ 9.16 p.m.
§ Baroness ELLES
I do not think that I need reassure the noble Baroness that the proposal to leave out Clause 64, as well as the proposal to leave out Schedule 9, is intended only for probing purposes, and I do not intend to press them this evening; nor indeed would I do so in this form in the future. They give me an opportunity to raise an important point which was also discussed during consideration of the Scotland Bill. In particular, it was raised by my noble friend Lord Colville of Culross on the fifth day of the Report staged of the Scotland Bill.
I am sure that the noble Baroness will know the point that I am about to raise. In Schedule 9 of the Bill certain powers are given to the Secretary of State to intervene in planning matters. Part I of the Schedule lists the sections of the Town and Country Planning Act 1971 in relation to which the Secretary of State may intervene. The list covers planning permission and various other matters, but it leaves out listed buildings, which I believe come under Sections 54 and 55 of the Act. I wish to draw to the attention of the noble Baroness the missing element which is in Part I of the Schedule, and the desire on this side of the Committee to have those two sections included.
The point of this matter was very ably outlined by my noble friend previously, so I do not propose to spend much time explaining to your Lordships all the reasons behind it. The main point concerns what might happen if listed buildings are not included in Part I. For instance, as the Bill now stands, in a case of a valuable property which is of national 1508 interest and part of our heritage, the Secretary of State would not have the power to hold a planning inquiry because this is part of the devolved functions. Certain powers under Sections 4 to 6 of the Historic Buildings and Ancient Monuments Act will be given to the Welsh Assembly, although only Section 7 powers (which concern access to the National Land Fund) remain available to the Secretary of State.
Let us suppose that there is in Wales a valuable property which everyone agrees should be protected, and possibly have money spent on it to restore it. The Welsh Assembly would not have access to the National Land Fund. On the other hand, the Secretary of State would not be able to hold a public inquiry where national bodies—United Kingdom national bodies, not Welsh national bodies—could give evidence and put their views as to the value of such a property, and advise the Secretary of State that funds from the National Land Fund should be used for that property. For instance, I am given to understand that, if we had not had these powers, Erddig would not have been saved from being pulled down.
I would be grateful if the noble Baroness could look at the point I am making. As I say, there is no question of pressing either of these Amendments. My noble friends carried a similar Amendment into the Scotland Bill. I shall not start the argument whether one thing is good for Scotland and another thing is bad for Wales, because I think we are getting on quite nicely and I am not going to hold up the proceedings of the evening. Nevertheless, I think it is a point that needs looking into, and I should be very grateful for a reply from the noble Baroness on this point.
§ 9.21 p.m.
§ Baroness STEDMAN
In an earlier debate which we had on Schedule 2 to the Bill I outlined the broad range of powers under the Town and Country Planning Act 1971 which were to be transferred to the Assembly. These include, for instance, the powers to confirm development plans and to determine planning applications on appeal or call-in. These powers are transferred outright to the Assembly because land use planning can be sensibly considered only as a whole 1509 —and that has been recognised throughout all our post-war planning legislation. So regard must in all cases be paid to all competing land uses and to all development and amenity needs.
I think it fair to say that the majority of land use considerations arising in planning cases will relate to matters in respect of which the Assembly will exercise functions in other contexts; for example, housing and roads. But the Government recognise that there are other important considerations which relate to reserved subjects—for instance, energy or defence—and the Assembly will of course be required to weigh all such considerations in reaching their planning decisions, just as local authorities must weigh considerations for which they might not have responsibilities in other contexts. If all considerations are not properly taken into account, then planning decisions can of course, and may, be challenged in the courts. But there will be occasions where the Government will nevertheless wish to intervene—for instance, in cases where the Assembly does not have the knowledge that would be available to the Government. For example, if a development was proposed near a defence base, the Assembly might not itself be aware that a security risk was involved. Where such important United Kingdom considerations are raised, then the responsibility must in the last resort rest with the Government.
Therefore, we must consider what is the most appropriate means of Government intervention. I would suggest that for a range of planning matters of a more general nature, the general override procedure of Clauses 34 and 35, which we debated in the earlier hours of today, provide all that is required. For example, during an earlier debate the noble Baroness herself, and her noble friend the noble Viscount, Lord Colville, raised the question of Section 7 of the Town and Country Planning Act, which places a duty on local authorities to have regard to economic policies when they are preparing their structure plans. It was rightly pointed out that the Assembly will, after devolution, have the functions under Section 9 of approving structure plans, and therefore will among other matters need to consider whether the local authority has reflected the Government's economic policies.
1510 I am sure the Assembly will give proper weight to this, which is, of course, only one of a whole range of considerations they will have to take into account; but should the need arise, the Government would be able to use their general powers of intervention under Clause 34. Equally, if the Assembly made a general development order under Section 24 which was prejudicial to a reserved interest, then the intervention of powers of Clause 35 would arise. The Government, however, consider that there are a range of important development control decisions in individual cases for which these general intervention powers are suitable. These are listed in Part I of Schedule 9, and Clause 64 provides that in these cases the intervention procedures of Part II of Schedule 9 should apply instead of those of Clause 34.
I shall explain our reasoning. The powers listed in Part I of Schedule 9 are all ones under which the Assembly must decide for or against a particular development proposal, and which are presently subject to quasi-judicial procedures. The most important example—in terms of the number of cases presently arising—is the determination of planning appeals under Section 36 of the 1971 Act. The general intervention procedure of Clause 34 is not apt in these cases for two reasons. First, it imposes a Parliamentary procedure on the decision of the Secretary of State, which inevitably must prejudice his quasi-judicial role. And, secondly, it does nothing to safeguard the rights of parties to a case to be heard—which are central to our established planning procedures.
The procedures in Part II of Schedule 9 avoid both these difficulties. They make no provision for Parliamentary procedure, and the Secretary of State simply takes the case over from the Assembly—in shorthand he "calls it in". Secondly, the procedures are in such terms that the Secretary of State may take over where the Assembly left off. If, for instance, a local inquiry is in mid-progress, that inquiry may continue but with the inspector's report going to the Secretary of State rather than the Assembly. Parties to the inquiry will retain their existing rights to be heard, but the Assembly will additionally be given such a right by virtue of paragraph 6(1) of the Schedule. I hope that this explanation shows the reasoning behind Clause 64 and Schedule 9. We think that these pro- 1511 visions are important in terms of the retention of our planning procedures, and their deletion might risk bringing planning decisions subject to intervention into the political arena in an undesirable way.
Perhaps I could also take this opportunity to return to a point made in an earler debate by the noble Baroness, Lady Elles, about office development permits. As I said at the time these have never been in practice applied to Wales. But we take the point that they are not an apt matter for the Assembly as they primarily concern employment and regional policy. Accordingly we shall propose amendments on Report to reserve ministerial functions in respect of office development permits.
As the noble Baroness reminded us, during proceedings on the Scotland Bill, the noble Viscount, Lord Conville, raised a number of points on the equivalent Schedule to that Bill. I believe that we were able to satisfy him on most points, but he, as was the noble Baroness, was particularly concerned that listed building control should come within the scope of the planning intervention procedures. The difficulty here is that intervention—as with the general override procedures—is only allowed where a reserved matter for which the Government is responsible throughout the United Kingdom is affected. If the Welsh Assembly is responsible for a matter in Wales then that matter cannot provide grounds for intervention. With listed building control I am advised that it is very difficult—or indeed impossible—to envisage what reserved matter of United Kingdom importance might be affected. The noble Viscount tried to overcome this difficulty by broadening the grounds of planning intervention so that the Secretary of State could intervene simply because the Government were responsible for the equivalent matter in England. The Government cannot accept this because it would mean that planning intervention procedures were more widely available than the general intervention procedures. This is not only inconsistent. It would, in the planning context, make very little sense in practice. The Government would therefore have to oppose any Amendments put forward to the Wales Bill which are equivalent to those carried on the Scotland Bill.
§ Baroness ELLES
I am grateful to the noble Baroness for taking so much 1512 trouble in once again answering questions which I have not put but which, nevertheless, elucidated for me and for my noble friends many points in connection with the effect of Clause 64 and its working in conjunction with Schedule 9. We are grateful. I am also grateful for her response to my comments on Section 74(3) of the Town and Country Planning Act in relation to office development permits. This is a positive contribution for which I am grateful.
I find it difficult to accept her reasoning with regard to the listed buildings powers which the Government do not seem to be able to accept as a reserve matter in Part 1 of Schedule 9. I think that one of the obvious difficulties that will occur is that the Welsh Assembly will not be able to have access to the National Land Fund. This is probably one of the major stumbling blocks. I see that there may be legal reasons why this is difficult to work out at the moment, but I feel sure that it would not be impossible to find a way of getting round this difficulty. It must be in the interest of Wales, and of the nation as a whole, that some great building or historical monument or monument of Welsh culture—which is the same as British culture —should be preserved for the nation, and that access should be available to the National Land Fund.
I should like to look at this again and perhaps submit something else on Report. If the noble Baroness feels that there could be some slight movement in any way from her side on this matter, I should be grateful if she would communicate with me.
§ Clause 64 agreed to.
§ Schedule 9 agreed to.
§ Clause 65 [Status and remuneration of certain officers and servants];
§ [Amendment No. 102S not moved.]
§ 9.31 p.m.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 102SA:
Page 27, line 31, leave out ("the home civil service of the state") and insert ("Her Majesty's Home Civil Service").
§ The noble Lord said: This Amendment is solely concerned with nomenclature. Clause 65 at present provides that service 1513 as an officer or servant of the Welsh Assembly shall be service in the "home Civil Service of the State." There was comparable provision in Clause 65 of the Scotland Bill. The phrase is precedented in that the Civil Service Order 1968 refers to the "Civil Service of the State" to cover all branches of the Civil Service.
§ However, during debate on the Scotland Bill, the noble Earl, Lord Selkirk, opposed the use of the word "State" which he said was ugly and had overtones of separatism. He proposed instead the phrase "Her Majesty's Home Civil Service." This form of words is equally accurate and is precedented in the Civil Service Order in Council of 1969. The Government therefore accepted Lord Selkirk's Amendments on this point to the Scotland Bill and now propose a similar Amendment to the Wales Bill, which I hope noble Lords from every part of the Committee will welcome.
§ Lord ELTON
I cannot resist the opportunity of saying something agreeable so I will say "Thank you" to the noble Lord.
§ [Amendment No. 102SB not moved.]
Lord DONALDSON of KINGS-BRIDGE moved Amendments Nos. 102SC and 102SD:
Page 27, line 37, after ("in") insert ("respect of").
Page 28, line 1, after ("service") insert (",their ceasing to serve or their suffering diminution of emoluments").
§ The noble Lord said: These minor technical Amendments to Clause 65(2) correct the provisions relating to the remuneration of officers and servants of the Assembly. Similar Amendments have already been agreed to the corresponding clause of the Scotland Bill. It would be impossible for the complicated calculations concerning payment of contributions to the Principal Civil Service Superannuation Scheme to be completed within the financial year to which they relate. The payments must therefore be related to the financial year in respect of which they are made, rather than, as the Bill now provides, requiring them to be made within that year. The addition of the words "respect of" in the first Amendment achieves this result.1514
§ As it stands, subsection (2) allows the Minister for the Civil Service to calculate the amount due from the Welsh Consolidated Fund in respect of pensions, allowances and gratuities allowable to officers serving the Assembly during the financial year. The second Amendment will enable these calculations to be based not only, as is now provided for, on service during the year; but also, as appropriate, on the ending of service (whether on premature retirement or on loss of office for other reasons) and downgrading. I think these are innocent drafting Amendments and I hope that your Lordships will approve them.
§ Clause 65, as amended, agreed to.
§ Clause 66 [Transfer of property]:
The Marquess of TWEEDDALE moved Amendment No. 102T:
Page 28, line 23, leave out subsection (3).
§ The noble Marquess said: This Amendment standing in the names of my noble friend Lord Skelmersdale and myself is a consequential one concerning forestry. I beg to move.
§ Lord DONALDSON of KINGS-BRIDGE
With the usual reservations, may I say that we accept this Amendment.
§ Clause 66, as amended, agreed to.
§ Clause 67 agreed to.
§ Clause 68 [Complaints of maladministration]:
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 103:
Page 29, line 2, leave out ("additions").
§ The noble Lord said: This Amendment arises from a commitment given to the noble Viscount, Lord Colville, during the Committee stage of the Scotland Bill. It is another instance of the infinite flexibility of the Government's approach to these Bills.
§ Clause 68 empowers the making of an Order in Council to provide for the investigation by the Parliamentary Commissioner for Administration of allegations of maladministration by or on 1515 behalf of the Assembly. Subsection (2) provides that the Order in Council may apply, with such additions, exceptions and modifications as necessary or expedient, any of the provisions of the Parliamentary Commissioner Act 1967. The Scotland Bill contained a similar provision, although there the Order in Council was only to make interim provision pending the Scottish Assembly making its own arrangements.
§ The noble Viscount, Lord Colville, queried whether it would be necessary to make additions to the 1967 Act, as well as modifications and exceptions. The Government have considered this point in relation to both Bills and, on reflection, it seemed unlikely that in applying the 1967 Act to the Welsh Assembly it would be necessary to have a power to make additions to that Act. This Amendment makes that a fact. I beg to move.
§ Clause 68, as amended, agreed to.
§ Clause 69 agreed to.
§ Clause 70 [Determination of issues as to Assembly's powers]:
§ 9.39 p.m.
§ Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 104:
§ Page 29, line 13, leave out from ("institute") to end of line 16 and insert ("against the Assembly proceedings of the kind specified in subsection (2) below notwithstanding that each of them acts on behalf of the Crown.
§ (2) The proceedings referred to in subsection (1) above are proceedings for a declaration as to—
- (a) whether a power conferred or duty imposed by or under any enactment is exercisable or falls to be discharged by the Assembly;
- (b) whether anything done or proposed to be done by the Assembly is within its powers; or
- (c) whether the Assembly has failed to discharge a duty imposed on it.").
The noble Lord said: This Amendment deals with page 29, line 13, of Clause 70 and I shall quote it.
The proceedings referred to in subsection 9(1) above are proceedings for a declaration as to—
The noble Baroness, Lady Elles, has tabled an Amendment to Clause 70, page 29, line 16, which perhaps we might consider at the same time: that is, Amendment No. 104A. The noble Baroness has not yet moved that Amendment but I should like to speak to it and so perhaps we can speak to the two together. The noble Baroness's Amendment reads:
and without prejudice to the foregoing, the Attorney General and any other person may institute and the Assembly may defend proceedings seeking a determination of any question whether the Assembly is in default in the fulfilment of any duty placed on it or transferred to it by this Act and seeking an order requiring the fulfilment of such duty, provided that no such proceedings shall be instituted by any person other than the Attorney General unless the person is or would be aggrieved by such default or has an interest in the fulfilment of such duty.
It is rather unusual for me to quote an Amendment before it has been moved, but it seems to me the most practical way of proceeding.
§ The Amendment of the noble Baroness is identical to the Commons Committee Amendment No. 342, tabled by the Opposition Front Bench. Its purpose is threefold: to provide a means for bringing before the courts questions as to whether the Assembly has failed to carry out a duty; to give an aggrieved citizen the right to bring such proceedings, and to give the courts power to enforce their orders. For the reasons which I shall give, it is likely that, generally speaking, the third is the most important of these points.
§ The Government Amendment implements the undertaking given in another place, following discussion of an Amendment which was identical to that to be proposed by the noble Baroness, and I imagine that the reason for setting it down again is that in another place my right honourable and learned friend's undertaking, although generally welcome, did not wholly satisfy those on the Benches opposite him. I think, therefore, that we are not really all that far apart and that there is only one issue of substance between us. I will return to that issue in a moment, but, first, I think I ought to explain what 1517 Clause 70, as we propose it should be amended, seeks to do. This is an important and difficult point, and I shall answer it at length.
The first point to consider is why we need anything like Clause 70 at all. The answer is, as my right honourable and learned friend put it in another place,
in the ordinary way, when one is dealing with Ministerial powers, one does not have the situation that the Attorney-General has the right to go to the Court in order to question whether the use by Ministers of their powers is a proper use or not".
We are not talking about the established case law, where a citizen has a grievance against a particular act of a Minister. Within a single unitary Government, there is no need to bring such matters before the courts. Ministers are collectively responsible for the discharge of their duties. The Cabinet can seek legal advice as to the nature and extent of these duties from the Attorney-General, who is the legal adviser to the Crown—he is Her Majesty's Attorney-General. Her Majesty appoints someone to give her legal advice in the conduct of her Government; and it would he highly anomalous if that adviser took action against his client. It is, to say the least, doubtful whether the courts would entertain such an action. The creation of a separate Executive in the Welsh Assembly affects this aspect of our Constitution. There will be two arms of the Crown, which may receive conflicting advice as to their duties or the extent of their powers. Moreover, by contrast with Scotland, the Executive in Wales lacks power to introduce legislation amending those powers and duties.
Clause 70 is designed to do the very minimum to take account of this new situation. It is not a clause about the rights and duties of the Assembly in relation to the individual citizen. It is designed to do no more than remove a constitutional difficulty in bringing before the courts issues as to the powers and obligations of the Assembly. The last words of what would become subsection (1) make this point clear:
notwithstanding that each of them"—
that is, the Attorney-General and the Assembly—
acts on behalf of the Crown".
§ In another place it was suggested that the original clause did not cover acts of omission—that is, failure to carry out a duty. This point is brought out again in Amendment No. 104A. The new paragraph (c) in subsection (2) ensures that the clause covers this aspect. In consequence of the express reference to duties, paragraphs (a) and (b) separate out and distinguish between two matters which were previously rolled up together. Paragraph (a) deals with the question as to where a particular power or duty lies. Is it a ministerial power or an Assembly power? In practice, these questions should arise very rarely because the fact that the Assembly is to have only executive competence has enabled the Bill to achieve a precision in this respect which is not possible in the case of the Scottish Executive. Paragraph (b) deals with vires issues: does the Assembly have power to do something which it has done or proposes to do? This issue is one which is already very familiar in our law. When a Minister acts as agent of the Crown, he must abide strictly by the terms of his authority. The Assembly will be in the same position. Subsection (2) will therefore now cover clearly every aspect of the questions which can arise as to the exercise of powers and performance of duties by the Assembly. In this respect, I think that the noble Baroness will agree that we have entirely met the point posed by her Amendment.
§ The second point raised by Amendment No. 104A is the right of the citizen to bring proceedings. As I have said, the whole object of this clause is to remove a constitutional difficulty. It is in no way relevant to the right of an aggrieved citizen to bring proceedings. As my right honourable and learned friend said in another place, the Government propose to use the powers conferred by Clause 78(2) to make the necessary amendments to the Crown Proceedings Act 1947 to ensure that the present law on Crown proceedings applies to the Assembly. My right honourable and learned friend was asked to produce a draft of the proposed Amendments. I regret that we are not in a position to do that; it is a major undertaking which will take time. However, I can assure your Lordships that the Amendments will not and could not change the essential nature of the citizen's rights against the Crown. They will merely 1519 adapt the 1947 Act in the wake of the Bill. I think that I have thus dealt with the second point in Amendment No. 104A.
§ The third point in Amendment No. 104A is enforcement. The Amendment would give the court a right to order the fulfilment of a duty. The Government Amendment contains no comparable provision. I freely admit that and I would defend most strongly the fact that it does not. This point may be the one point in issue between the noble Baroness and myself and I propose to direct the remainder of my remarks—unfortunately, quite long —to it. It is very important.
§ It is contrary to the whole basis of our Constitution for the court, which is one arm of the Crown, to order another arm of the Crown to perform a duty at the instance of a third. That is a fundamental principle of administrative law, and even if it were right to change it, which I should very much doubt, it would be wrong to do so in this Bill. Consider just the question of sanctions. What sanction could the court employ? I have heard no answer to this. As long as the law has been clarified, by way of a declaration, then the Crown knows what the relevant law says. That is as far as a court could or should go.
§ There is another aspect to this. What Government do, by and large, is to make provision, by directions and regulations, within the framework of primary legislation to govern the actions of others. This is the essence of the functions which are being transferred to the Assembly. If the Assembly were to act in breach of the law, as clarified by the courts, how could it expect others to comply with its orders? There are various legal maxims applicable to this situation, but I offer this political maxim instead: the Assembly cannot have its cake and eat it. The Assembly cannot invoke the authority of that law which it disregards.
§ The Government believe that the Assembly will be composed of reasonable people. We have covered that point several times in our debates. We reject the fears which have sometimes been expressed in our debates that the Assembly will be composed of wild men from the hills. But even if the Government are wrong in their belief, my argument would stand. An Assembly, an arm of the 1520 Crown, which sought to deny the rule of law would be denying itself. The consequences would be grave. But if we believe that we can provide a legislative solution, we are proceeding on a mistaken view of constitutional law.
§ All this is high constitutional theory—although no less valid for that. The noble Baroness may say that it is all very find in theory but that it ignores practical realities. I do not agree, and I could support my views by examples from throughout the common law system. Instead I will refer to the law of the European Communities, since that legal order was created with the benefit of the accumulated legal wisdom of most of Europe. Your Lordships carried into the Scotland Bill a provision designed to channel references to the European Court of Justice. In dealing with Governments, that court has no power to enforce its decisions. But I know of no case where the Government of a Member State has failed to implement a decision of the European Court.
§ What the Government's clause does is to enable the courts to give en authoritative ruling as to where a power or duty lies and as to its extent. Before the court rules, there may be room for argument. It is open to the Assembly to say: "Yes, we are happy to comply with the law, but we do not think the law obliges us to to this or that". But once the court has ruled, that argument is no longer available. The Assembly will not be able to deny that they are under a duty to do a particular act or not to do another act. For the reasons I have stated, I see no justification for trying to make a fundamental inroad into constitutional principle by providing for any failure to comply with the law as the court has declared it. The beginning and end of the matter is that the Assembly will be exercising functions on behalf of the Crown, and that every constitutional and legal principle requires us to accept that the Crown will act in accordance with the law once that is made clear. I therefore urge the Committee to accept this Amendment and I hope that the noble Baroness will join us and, if she does, that she will not move her subsequent Amendment. I am sorry to have spoken at such length, but this is a very difficult, very important point of law, which must be carefully dealt with. It is a good thing that, in spite of the length of my speech and the lateness of 1521 the hour, the record should contain exactly what is the Government's view. I beg to move.
§ Baroness ELLES
On behalf of my noble friends I should like to express my thanks to the noble Lord, Lord Donaldson of Kingsbridge, for a very full and clear statement, not only supporting his Amendment—he has done something which I think is not exactly unconstitutional, but is certainly helpful, in that he almost moved my Amendment for me. I am sorry that he did not end with quite the same words of approval for my Amendment as he did for his own. Nevertheless, he indicated that there were certain areas—at any rate, one area—where we are not in disagreement at all; and from this side of the Committee I express our gratitude to the noble Lord and to the Government that one point at any rate has been met. That is the point contained in subsection (2)(c) concerning the failure by the Assembly to discharge its duty. That is now covered in this Amendment.
There are of course certain other matters which are not quite so clear or so satisfactory from our point of view, or indeed from the citizen's point of view. The points I should like to mention are, first, those which deal with who has the right to bring proceedings. Under this Amendment it still lies within the discretion and the power of the Attorney-General alone. I repeat, this is a purely and absolutely discretionary power to bring proceedings against any body or individual. This means that the Attorney-General has to decide whether it is in the public interest and to take into account other matters before he will act on behalf of either an individual or a body against the Crown.
The noble Lord rightly pointed out the situation that the Attorney-General, who is a member of Her Majesty's Government, will be bringing an action against a body which, as he has said—I am not quite sure of his actual words, but they were to the effect that it was acting in a similar way to a Minister of the Crown. Obviously, a Minister of the Crown is a member of the Cabinet and he shares responsibility with the Government of the day, whereas the Welsh Assembly may even be a completely different political Party from that of the Government, 1522 and undoubtedly that is where there will be some difficulty. There might well be an Attorney-General who would be willing to bring an action against the Welsh Assembly if it were of one political complexion different from that of the Attorney-General whereas he might be less willing to bring an action against the Welsh Assembly if it was of the same political complexion —and of course I am not saying which Parties migh be involved. Obviously such a serious consideration might arise, and if the Bill is left as it is, or if some other measure is not taken to amend some other Act—for instance the Crown Proceedings Act—this would be of grave harm to an individual citizen if there was only to be a political decision as to the protection of his rights from actions of the Welsh Assembly.
I was amused to hear once again the noble Lord putting into our mouths things that I would never have thought of saying, but I am delighted to think that he may think that we think that there may be the wild men from the hills of Wales who will be filling the Welsh Assembly. I would remind him, however, that even Ministers of the Crown have acted outside their powers. Within the last four years there have been at least three cases of that sort, and unless he is saying that his colleagues are also wild men of the hills I fail to see the need to make that kind of reference to the elected body of the Welsh Assembly.
Obviously, this is a matter which is not to do with the quality or the type of person in the Assembly, or, for that matter, an individual who is acting as a Minister of the Crown. There are many reasons why these things happen, but nevertheless they can and do happen. Such a thing may well happen with the Welsh Assembly, just as it has happened with a Minister of the Crown, and undoubtedly may well happen again for some reason or another. For this reason alone, I think that this Amendment is not satisfactory unless some other measure is taken. This was discussed in another place and the noble Lord referred to the fact that there will be an Amendment to the Crown Proceedings Act; but we on this side of the Committee have not really been assured as to the exact form that such an Amendment will take.
I should like to know whether, under such an Amendment, any person aggrieved 1523 will have an automatic right to bring an action against the Welsh Assembly for failure to fulfill a duty or where the Welsh Assembly has acted outside its powers, or where an individual has suffered some wrong by virtue of an act or a failure to act of the Welsh Assembly. This is a matter of vital concern and I think this concern is shared by all Members of your Lordships' House. Wherever there is any form of bureaucracy—I am not relating it only to the Welsh Assembly, but to any form of bureaucracy—the first thing you have to do is to see that, equivalent to the setting up of that bureaucratic machine, there is an equal right of redress by the individual against any act of that bureaucratic machine. In this Bill this is an element which is lacking at the moment. We would like a rather more concrete assurance from the Government setting out the exact terms in which these rights will be protected by an Amendment to the Crown Proceedings Act, as the noble Lord suggested. I understand that is the only way it can be done, and not in this Bill. It is certainly something to which I attach the greatest importance.
The noble Lord mentioned another point where we are not ad idem; that is, the remedies that an individual or a body can obtain under this Amendment. As he rightly says, if the Attorney-General brings proceedings he will only be able to bring proceedings for a declaration of the rights; he cannot demand the enforcement of the remedy. Under the Crown Proceedings Act, of course, the Crown can be sued, both in tort and in contract, and it would, therefore, be much more satisfactory, if such an Amendment is being made to enable a person to bring proceedings against the Crown, if the Government could state what remedies will be available to that individual, whether they can sue for damages or for specific performance, or whether they can claim an injunction.
These are the kind of things we should be told. It is quite useless to the individual citizen to be told (a) that the Attorney-General may bring a case or may not, and (b) even if he does, the citizens' wrongs may not be redressed—he may not get a remedy —because it will lie entirely in the hands of the Welsh Assembly in this case to redress those wrongs. Of course, it is not an analogy to point out that when the European Court makes a declaration, for 1524 instance on an interpretation of Article 177, Governments do implement what the court has stated. There is no parallel between the relationship of the European Court of Justice to a national government and the relationship of the courts of England and Wales to the Welsh Assembly; the relationship is not at all the same. First, a national government is, after all, a Member of the European Community. The Welsh Assembly is not a member of the Government, or of any judicial set-up in this country. Obviously the relationships are totally different. So I do not think the situation is analogous.
Obviously I have not gone into all the points the noble Lord raised. He gave a very long statement on these matters. I have not had time to study them. I should like to have a chance of looking at them more closely. I have tried to raise the points which I thought were essential in differentiating the position between us. Subject to any comment the noble Lord may like to make in reply to what I have said, at any rate I shall not move my Amendment.
§ Lord DONALDSON of KINGS-BRIDGE
I am grateful to the noble Baroness. I should like to reply in exactly the same vein. This is a very difficult matter and I do not think that one wants to deal with it in argument across the Committee. We shall each study what the other has said and communicate either by letter or possibly at the next stage.
§ [Amendment No. 104A not moved.]
§ Clause 70, as amended, agreed to.
§ Clause 71 [Confirmation by House of Commons of resolutions passed by it but not by House of Lords]:
§ On Question, Whether Clause 71 shall stand part of the Bill?
§ Lord ELTON
This clause is headed:Confirmation by House of Commons of resolutions passed by it but not by the House of Lords".This battle was fought in this place at another time. I think that reason carried the day and I trust that the Government 1525 will now, in consistency, accept that this clause should be removed from the Bill at this stage.
§ Lord DONALDSON of KINGS-BRIDGE
Without confirming the fact that reason carried the day, I shall confirm the rest of what the noble Lord has said.
§ Clause 71 disagreed to.
§ Clause 72 [Reckoning of time for certain purposes]:
Lord ELTON moved Amendment No. 105:
Page 29, line 33, leave out ("35 or 71") and insert ("or 35").
§ The noble Lord said: I beg to move Amendment No. 105. This Amendment is consequential upon the last.
§ Clause 72, as amended, agreed to.
§ Clauses 73 to 76 agreed to.
§ Schedule 10 [Powers of Assembly to make or confirm orders subject to special parliamentary procedure]:
§ [Amendment No. 105A not moved.]
Baroness ELLES moved Amendment No. 105B:
Page 71, leave out lines 35 to 44.
§ The noble Baroness said: I beg to move Amendment No. 105B. This Amendment is consequential.
§ Schedule 10, as amended, agreed to.
§ Clause 77 [Modification of enactments requiring the laying of reports before Parliament]:
§ The noble Lord said: I beg to move Amendment No. 106. This is another of the drafting Amendments improving the English of the Bill which I proposed earlier. We discussed the matter in detail. In this case, the revised wording is applied in the clause which provides for the general conversion of references in existing legislation to the laying of reports before Parliament. I beg to move.
§ On Question, Whether Clause 77, as amended, shall stand part of the Bill?
§ Lord SKELMERSDALE
If the last Amendment has been agreed to, which it has, is it still necessary to retain subsection (2) in the clause? Does it not in fact duplicate it?
§ Lord DONALDSON of KINGS-BRIDGE
The noble Lord has asked me a question which I do not think I can answer because I cannot find my copy of the Bill. Would he be kind enough to repeat it?
§ Lord SKELMERSDALE
The last Amendment said,instead be sent to and published by".As I read the clause, subsection (2) deals with publishing. Is this not already covered by this Amendment?
§ Lord DONALDSON of KINGS-BRIDGE
I think the answer is, No. The subject in subsection (2) is about a different case.
§ Clause 77, as amended, agreed to.
§ House resumed.