Lords Sitting of 1 July 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Irvine of Lairg): My Lords, before business begins, I take the opportunity to inform the House that I will be hosting a luncheon on behalf of Her Majesty's Government for the President of Peru on Wednesday 8th July. Accordingly, I trust that the House will grant me leave of absence.

Development Grants and Unemployment
Lord Steel of Aikwood Lord Steel of Aikwood asked Her Majesty's Government:
Whether, following the payment of industrial development grants to the American firm of Viasystems Ltd. for a new factory in north east England, they are aware of the redundancies created in the same firm's factories at Galashiels and Selkirk, and whether they will review the effects of their present policy on unemployment.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, I am aware of the redundancies which have been announced at Galashiels and Selkirk. I regret hearing of any job losses. It is not the Government's policy to offer grants to businesses merely to transfer jobs from one part of the country to another.
Lord Steel of Aikwood: My Lords, I am very pleased to hear the last part of the Minister's Answer. However, he will be aware that Viasystems Ltd. was acquired a few months ago by a US venture capital organisation which has been promised £15 million worth of land and premises in north Tyneside to make printed circuits. Naturally, unit costs will be cheaper in those circumstances. It is subsidising the 210 redundancies which have, as a consequence, been created in the Scottish Borders. Does the Minister agree that there is something wrong with the transfer of this publicly subsidised unemployment?
Lord Clinton-Davis: My Lords, a full assessment is made of the situation before RSA is applied. The situation in this particular instance is not, in my judgment, attributable to the causes to which the noble Lord referred. However, I am aware of the deep concerns in Scotland, especially in this area. My honourable friend, one of the Ministers of State for Scotland, will in fact be visiting the area tomorrow.
Lord Evans of Parkside: My Lords, is my noble friend the Minister aware that the noble Lord, Lord Steel
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of Aikwood, has raised an issue which has caused considerable concern in Merseyside? For example, I refer to the ability of the well-funded Scottish and Welsh development agencies to attract industry to their areas, often to the detriment of Merseyside and other English regions. Therefore, does my noble friend agree with me that, in view of the advent of English regional development agencies, it is imperative for Her Majesty's Government to put in place regulations which will ensure that the Scottish, Welsh and English development agencies do not involve themselves in an auction at public expense to try to attract industries to their area at the expense of other areas?
Lord Clinton-Davis: My Lords, that is certainly not the Government's intention. We do not want to see such an auction develop. We shall use our endeavours and our influence to prevent that from happening.
Lord Monro of Langholm: My Lords, does the Minister realise the seriousness of the unemployment situation in the Scottish Borders and in the south of Scotland due to serious problems in the textile industry enhanced, unfortunately, by the value of the green pound? I appreciate that a Minister is, somewhat belatedly, visiting the area tomorrow, but how soon can we expect some action to deal with that and indeed with the situation in agriculture, which is also undergoing a particularly rough time and is one of the two stable industries for the south of Scotland?
Lord Clinton-Davis: My Lords, I appreciate that there are sectoral problems in the area. However, it is fair to point out that unemployment overall stands at 4 per cent. in the area, which is among the lowest percentages in Scotland. Only yesterday I met a deputation from the GMB union regarding the textile industry. I am aware of the situation and shall be replying to those concerns in due course.
Lord Fraser of Carmyllie: My Lords, the Minister referred to 4 per cent. unemployment. Can he tell us whether that includes the 720 people whose job losses were announced yesterday by Dawsons as a consequence of the strong pound? More generally, on the question that has been raised, does the Minister and his right honourable friend the President of the Board of Trade appreciate that the issue of regional aid is one of the rawest issues to be encountered outside London? Does the Minister consider that the Government have given sufficient thought to how this is to be handled once we have a Scottish parliament and a Welsh assembly in place?
Clearly those bodies concerned feel very strongly about the matter, both in Wales and in Scotland. They have lost jobs and they need every possible support. Does the Minister also recognise the fact that many of his noble friends from the regions of England feel equally strongly that Scotland and Wales have been securing an unfair advantage? As has been suggested,

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some mechanism needs to be established to ensure that there is not unfair competition between different parts of the United Kingdom.
Lord Clinton-Davis: My Lords, with the greatest respect, I find it a little thick for someone who was a Minister in the previous government to charge us with neglecting our responsibilities in terms of regional policy. The fact is that they totally neglected that responsibility. The noble and learned Lord referred to the strong pound as the source of all the problems. Of course, that merely over-simplifies the issue. It is a problem and one which, incidentally, we inherited from the previous government in very substantial measure. The pound had been accelerating in value very considerably under the noble and learned Lord's government.
On the question of Dawsons, that matter is being raised this afternoon in another place by way of a Private Notice Question. I am aware of the problem. I am sure that my colleagues in the Scottish Office are giving the matter the attention that it properly deserves.
Lord Fraser of Carmyllie: My Lords—
Lord Steel of Aikwood: My Lords, I return to my original Question. I quite agree with the noble Lord, Lord Evans of Parkside, but what we are talking about here is not public subsidy to encourage new employment but the risk that we are simply paying for employment to be transferred from one area to another. It does not matter on which side of the Border the employment is being transferred, it is equally bad. Does the Minister also recognise that Viasystems Ltd. was a company which developed and expanded to provide employment other than in textiles in the late 1960s under the policies of the then Labour government? It is most unfortunate that that firm is being run down now just at a time when Dawson International is experiencing difficulties in the textile trade.
Lord Clinton-Davis: My Lords, it is not the responsibility of the Government that the firm is being run down. Commercial decisions are being taken. I cannot, on behalf of the Government, carry out a full investigation into those. I have tried to assert that regional selective assistance is not designed to promote the consequences to which the noble Lord has referred; the opposite is the case. I do not think that the running down of this company and the unemployment which has resulted can fairly be attributed to the way in which regional selective assistance was given to the Tyneside companies. I believe that the noble and learned Lord, Lord Fraser, is dissatisfied with my previous answer. I am amazed at that.
Lord Fraser of Carmyllie: My Lords, will the noble Lord answer the central question which I put to him? Even if he will not listen to me, he might listen to the noble Lord, Lord Steel, or some of his noble friends who have indicated that there are real concerns and rivalries in different parts of the United Kingdom with
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regard to the way in which this regional aid is distributed. There are real suspicions that some people are securing an unfair advantage. I asked the noble Lord to consider whether, with the establishment of the Scottish parliament and the Welsh assembly, he is satisfied that the risk of such jealousies and such suspicions will be increased or diminished. My concern, judging from the questions which have been asked, is that the risk will increase rather than decrease.
Lord Clinton-Davis: My Lords, the noble and learned Lord is entitled to his opinions. I think he has overstated the case here. What he wants now is a debate on devolution, which I shall not enter into. I am aware that these concerns exist but I think that they are somewhat misplaced. The value of RSA has been considerable. I believe that the noble and learned Lord is exacerbating the suspicions that he has mentioned. They are suspicions but, interestingly enough, there is no firm evidence behind them.

British Museum: Bernard Shaw Bequest
2.45 p.m.
Lord Skidelsky Lord Skidelsky asked Her Majesty's Government:
In view of the assurance given by the British Museum trustees to the House of Commons on 17th December 1959 that the bequest of Bernard Shaw to the British Museum would be "used primarily for the benefit of the Library", what steps they intend to take to ensure that this assurance is honoured.
Lord McIntosh of Haringey: My Lords, I must tell the noble Lord that I took tea with George Bernard Shaw in the summer of 1940. He did not vouchsafe his intentions to me, partly because he had not finalised his will but partly because I was only seven years old at the time.
The formal position is that George Bernard Shaw's bequest to the trustees of the British Museum is unrestricted. The trustees therefore have discretion over the use to which such funds are put. They have decided that the immediate priority for the Shaw Fund should be to underwrite the refurbishment of, and provision of access to, the Reading Room as part of the British Museum's Great Court project. The Reading Room, recently vacated by the British Library, will contain, after refurbishment, an information centre for the public and a public reference library.
We consider that this is an appropriate use of the Shaw Fund which is wholly consistent with George Bernard Shaw's intentions. However, we expect that once the Great Court project has been completed, the British Museum trustees will honour the decision of the trustees in 1959, reported to the House of Commons by Sir Edward Boyle, that the fund would in due course be used primarily for the use of the Library.
Lord Skidelsky: My Lords, I thank the Minister for that reply, and in particular for his encouraging words

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in the latter part of it. But the noble Lord will know that over the years the trustees of the British Museum have—shall we say?—been rather niggardly in honouring Bernard Shaw's manifest intentions, despite the promise that was given to Sir Edward Boyle in 1959, as reported to another place. What steps do the Government propose to take if this situation were allowed to continue?
Lord McIntosh of Haringey: My Lords, the noble Lord is quite right. Over the period since 1973, and the British Library Act, Library acquisitions have gained only £23,000 a year from the Shaw Fund. I can assure the noble Lord that if the trustees were to renege on the decision of 1959 we would not shrink from legislative action.
Lord Strabolgi: My Lords, what is the total amount of funds now standing in the Shaw bequest?
Lord McIntosh of Haringey: My Lords, the total figure is just under £7 million, although of course there is a substantial commitment of guarantee towards the Great Court scheme. Fortunately the European Union has encouraged us, indeed forced us, to extend the period of copyright for 70 years. Therefore there are 22 years still to run.
Lord Quirk: My Lords, may I raise a question as one who serves on the governing body of the Royal Academy of Dramatic Art, which is one of the three residuary legatees that Shaw intended to benefit equally from his will? Is the Minister aware that the RADA annual reports show that we, one of the three residuary legatees, received £2.1 million just since 1993 from this source? Surely the amount at £23,000 a year that is currently going to the British Library, even given the expression "in due course", is rather niggardly in comparison?
Lord McIntosh of Haringey: My Lords, I am of course aware, as I have George Bernard Shaw's will in front of me, that the Royal Academy of Dramatic Art was one of the three residuary legatees. However, I am not aware of the use which it has made of its funds. The British Museum trustees from an early stage built up an endowment rather than spending the money on an annual basis.
Lord Annan: My Lords, can the Minister say precisely what is the present value of the Shaw Fund, and what income it will receive each year from the Shaw estate? The noble Lord will no doubt recollect that, several years ago, when the British Library asked for funds to purchase Ellen Terry's letters to Shaw, it was met with a prevaricating answer. Any attempt to ascertain the precise state of the Shaw Fund became impossible because the trustees of the British Museum had merged that trust fund with all other trust funds from the point of view of investment. Is the Minister aware that refurbishment of the Reading Room could take a very long time and cost whatever the British Museum cares to charge against that particular account?
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Therefore I share the doubts expressed by the noble Lord, Lord Skidelsky, as to whether the assurance given at the end of the Minister's statement is of great value.
Lord McIntosh of Haringey: My Lords, I am sorry that the noble Lord should think that. I believed that I was unequivocal in expressing for the first time the Government's views about what should happen to the Shaw Fund. I have already said that there is almost £7 million in the Shaw Fund. I do not know what will accrue to the fund in the future. Nobody knows. There could be a revival of "My Fair Lady" or another musical based on a Shaw play.
As to the cost and timing of the Great Court scheme, it is planned that the scheme will be completed in about 18 months' time. Most of the funding has already been obtained from other sources. So the guarantee that has been given from the Shaw Fund is a minor part of the total funding. We hope that as little of it as possible will need to be used.
Lord Campbell of Croy: My Lords, for those of us who are not familiar with the details of this bequest, will the Minister clarify whether continuing royalties for recent or future productions of Shaw's plays will accrue to the fund? Also, will they accrue from general sales of his work, and from musicals?
Lord McIntosh of Haringey: My Lords, the answer to both questions is yes.

Pensioners: Income Entitlement Claims
2.52 p.m.
Lord Islwyn Lord Islwyn asked Her Majesty's Government:
Whether they have any new plans to assist the poorest pensioners.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, an estimated 1 million pensioners do not take up the income support they are entitled to. Around 60 per cent. of those are over 75, and 70 per cent. of them are single women. These are the poorest pensioners who are missing out on an average of nearly £17 per week. From this April, we started pilot projects in nine areas of the country to find the best way of encouraging pensioners to make a claim for income support. We are also experimenting with ways of making the delivery mechanism more automatic to help pensioners claim their entitlement in future.
Lord Islwyn: My Lords, I appreciate that poorer pensioners have benefited from the Chancellor's concessions over fuel and from other improvements. However, does my noble friend agree that poorer pensioners were done a grave disservice by the previous government who removed the linkage between pensions and average earnings? Is it not therefore understandable that a key demand of the recent pensioners' convention was for a return to that linkage? Does my noble friend

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agree that under a government dedicated to the principle of social justice poorer pensioners should be given a high priority?
Baroness Hollis of Heigham: My Lords, I entirely agree with my noble friend's last point; namely, that the poorest pensioners should be a priority for this Government—as indeed they are. That is precisely why we have developed pilot schemes to ensure that the poorest pensioners take up their entitlement, as they should and as we believe they ought to. Seventeen pounds a week would make a substantial difference to them. We are well aware of the agenda of the National Pensions Convention. My honourable friend in another place, Mr. John Denham, has had regular, helpful and useful meetings with Jack Jones and the convention. I believe there have been five meetings altogether in which the issue of pensions uprating was discussed.
It is true that had pensions retained their link with earnings as compared to prices since 1979 a single pensioner would be better off by an average of £20 per week. That said, the real way to help pensioners have a prosperous old age is to ensure that they have a secure, decent and good second-tier pension. Pensions linking is one thing, but the main way of springing pensioners into prosperity is to ensure a good, secure second pension. That depends on good jobs and a sound economy.
Lord Higgins: My Lords, the noble Baroness has not really answered the Question, which refers to new plans. She referred to plans that are already known. Are we to understand that we must await a Green Paper before knowing of any new plans? In that context, is she in a position to tell the House when that is likely to be published?
On her point about the take-up of income support, of which all of us are in favour, will the noble Baroness explain why the Government's expenditure plans indicate that the number of elderly claiming income support is expected to fall in 1998–99? Does the noble Baroness agree that the position of second pensions was seriously damaged by the action taken regarding income tax by the Chancellor of the Exchequer in his Budget? That action seriously affected the position of second pensioners. We cannot have confidence if that is the case.
Baroness Hollis of Heigham: My Lords, my noble friends tell me that the noble Lord asked five questions. I have noted at least three and if I miss any points I will write to the noble Lord. The welfare reform Green Paper published a couple of months ago made clear that the Green Paper on pensions will be published later this year. I cannot add to that answer.
The noble Lord's second question related to new schemes. The Question raised by my noble friend was about the schemes for the poorest pensioners. It is worth emphasising information that I have already given to the House; namely, that the best way to help the poorest pensioners now is to ensure take-up of the income support to which they are entitled. We are now
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beginning to receive the findings from our pilot schemes as to what discourages poorer pensioners and how we attempt to overcome those barriers.
The noble Lord's third substantive question related to the change in the last Budget in relation to income tax. I think the noble Lord meant advanced corporation tax. There was a slip of the tongue. We have debated that matter several times in this House. The Government's position is clear. The health of pension schemes depends on a sound economy. We believe that a sound economy and the health and prosperity of firms were ensured by a reduction in corporation tax, which is now among the lowest in the OECD. We do not believe that the health of pension funds should depend on the distortion offered by tax changes or tax shapes in the Budget.
Lord Goodhart: My Lords, the oldest pensioners are also the poorest. Are the Government prepared to consider the suggestion made by my honourable friend in another place, Professor Steve Webb, that the additional pension for those who are over 80 should be increased from the present farcical amount of 25p a week to £5, and that an additional £3 a week should be paid to those between 75 and 80? That would be an effective way of targeting additional pensions spending on those who are most in need without the need for a means test.
Baroness Hollis of Heigham: My Lords, those proposals have been put to us. We welcome any further evidence or information that the noble Lord has to offer. It is part of a consideration of the pensions review. When the Green Paper is published, that may address some of the concerns.
Lord Molloy: My Lords, in addition to the valuable points submitted to my noble friend from all sides of the House, will she consider those voluntary organisations dealing specifically with the problems of old age pensioners—like the Royal British Legion. Noble Lords laugh, but it is a wonderful organisation. Stand up anyone on the other side who says that that is not so! I ask noble Lords not to be so deceptive. They take the mick one moment and then, when challenged, remain strangely silent. Perhaps I may proceed and say to my noble friend that there are many ex-service people who are old age pensioners living in difficult circumstances.
There are many voluntary organisations doing great work to try to improve the situation. Will my noble friend consider contacting those organisations to see whether they can give her assistance in improving the conditions of pensioners and increasing the amounts on which they have to live?
Baroness Hollis of Heigham: My Lords, I am sure that the entire House joins my noble friend in recognising the important and valuable contribution made by the Royal British Legion and the Royal British Legion (Scotland) to the well-being of our older people, particularly those who served in the forces. My noble friend will be pleased to learn that I had a meeting with

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the Royal Pensions Organisations, including the RBL, around two weeks ago when I had the pleasure of welcoming Mr. Champ, the new chairman of RBL, to the War Pensions Group. As my noble friend is aware, they are never backward in bringing the case forward of older people, particularly war pensioners, in relation to the rights and supports to which they believe they are entitled.

Serbia: OSCE Obligations
3.1 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What action they took, as holders of the presidency of the European Union, to persuade the Serbian authorities to honour their international obligations under the Code of Conduct on Politico-Military Aspects of Security of the Organisation for Security and Co-operation in Europe.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Federal Republic of Yugoslavia is not a participating state in the OSCE. As presidency of the EU, the UK has therefore not specifically raised compliance with the Code of Conduct on Politico-Military Aspects of Security with the Federal Republic of Yugoslavia. However, we have frequently reminded the Yugoslav authorities of their need to show commitment to the process of democratisation, respect for human rights and the rule of law.
Lord Avebury: My Lords, is not the code simply a restatement of customary international law? Is it not a gross breach of customary international law to kill several hundred civilians and forcibly displace 60,000 people from their homes? Does the Minister agree with the five-point plan announced by the German Foreign Minister this morning as the basis for discussion at the Contact Group meeting which is to take place in Bonn on 8th July? Are we, like the German Foreign Minister, having intensive discussions with the Russians to see whether they can be persuaded to come round to this sort of action, including the possibility of military intervention as a last resort?
Baroness Symons of Vernham Dean: My Lords, the noble Lord often poses important questions and I shall try to deal with them. The Code of Conduct on Politico-Military Aspects of Security is politically binding. It enshrines a number of international agreements and conventions, mainly concerning the democratic control of armed forces. Since the Fry suspension from the OSCE, there is no mechanism available to ensure compliance with the code.
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The noble Lord raised specific points made by Mr. Kinkel this morning. I have seen only scant reference to those in papers which I received immediately before I came into the Chamber. As I understand it, Mr. Kinkel suggests that the political solution is the one that should be pursued; and that the best opportunity for so doing will be at the next meeting of the Contact Group in Bonn on 8th July. That will consider to what degree President Milosevic met the demands set out by the Contact Group when it met in London on 12th June.
Without detaining the House too long, perhaps I may state four aims in that regard: first, a ceasing of all action by the security forces which affect the civilian population; secondly, enabling effective and continuous international monitoring; thirdly, facilitating the full return to their homes of refugees and displaced persons; and, fourthly, making rapid progress in the dialogue with the Kosovar-Albanian leadership.
Earl Russell: My Lords, does the Minister agree that we must either make it easier for the inhabitants of Kosovo to live in their own country or make it easier for them to claim asylum in other countries, including their own? Can Her Majesty's Government promise that if they fail to do the first, they will do the second?
Baroness Symons of Vernham Dean: My Lords, the right way to approach this is as I outlined in the supplementary answer that I gave to the noble Lord, Lord Avebury: that this must be allowed to go forward on the basis of the Contact Group's next meeting in Bonn and on the basis I outlined to your Lordships. We all understand that the situation is increasingly tense as both sides show evidence of preparing for increased fighting over the summer months. Indeed, we learnt from reports coming in this morning about Serbian forces having taken a mine at Belecevac. The important point at the moment is to urge restraint on all sides and to look to a political dialogue to remedy these difficult problems.
Lord Rea: My Lords, can my noble friend say what the Government are doing to put pressure on President Milosevic to allow human rights monitors to be set up in all parts of Kosovo? Also, what pressure are they putting on him, together with the Russians rather than apart from them, to restore the autonomy that he took away from Kosovo in 1989?
Baroness Symons of Vernham Dean: My Lords, we welcome the undertakings which President Milosevic made in Moscow on 16th June to allow unimpeded access to international monitors and humanitarian organisations. We are currently seeking alternative ways to establish an increased European monitoring presence in Kosovo by bringing in six extra monitoring teams—two in each team—to supplement the existing five monitors who are already in the Federal Republic.

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In relation to the ambitions of the various parties, I am afraid that I must remind the House that we want to pursue political dialogue and that will next have an opportunity of being aired when the Contact Group meets on 8th July.

Scotland Bill
3.6 p.m.
Baroness Ramsay of Cartvale: My Lords, on behalf of my noble friend Lord Sewel, I beg to move the Motion standing in his name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Scotland Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 20,

Schedule 2,

Clause 21,

Schedule 3,

Clauses 22 to 28,

Schedule 4,

Clause 29,

Schedule 5,

Clauses 30 to 91,

Schedule 6,

Clauses 92 to 111,

Schedules 7 and 8,

Clauses 112 to 117.—(Baroness Ramsay of Cartvale.)

On Question, Motion agreed to.

Road Traffic Reduction (National Targets) Bill
Read a third time, and passed.

Government of Wales Bill
3.8 p.m.
Report received.
Clause 2 [Membership]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 1:
Page 2, line 14, leave out subsection (7).
The noble and learned Lord said: My Lords, in moving Amendment No. 1, perhaps I may speak also to Amendment No. 24 which is grouped with it and raises a similar point.
Amendment No. 1 seeks to leave out subsection (7) of Clause 2. I move to leave it out because it is unnecessary. It merely states what the existing law would do without it. All the amendments I ventured to put on the Marshalled List have the same object of eliminating unnecessary provisions and thus shortening
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an already unwieldy Bill. That being so, perhaps I may give, as a background to all those amendments, what has been happening to the statute book.
In 1975, when the Renton Committee on the preparation of legislation considered the state of the statute book—I am pleased that the noble Lord, Lord Renton, has put his name to the amendment—it drew attention to the prolixity of the statute book. It then ran to three volumes of Public and General Acts. Within 10 years that had increased to five volumes, despite what the Renton Committee had said. There was then the ingenious idea of making fewer volumes by putting them in a bigger format. That was extremely inconvenient for those who had bookcases to fit the smaller format. However, that was done and it reduced the number of volumes from five smaller ones to three larger ones. That was in 1987. But the matter did not stop there. By the following year there were not merely three but five larger ones and since then there have been four or five in each year. So I think your Lordships will agree that, as an amending Chamber, your Lordships have a parliamentary responsibility to do all you can to eliminate unnecessary provisions which merely go to swell the statute book.
Perhaps I may add this. That is only the Public and General Acts—primary legislation. Secondary legislation runs to twice as much as the primary. In fact, such is the volume that the Stationery Office has not managed to publish all the volumes of any year since 1995. For 1996 the first part of the year has been published. That is six volumes, so there are likely to be a dozen volumes in that year. Nothing has been published since.
This amendment turns on a point of law—I hope your Lordships will bear with that—and, I am afraid, a rather recondite point of law concerning corporations aggregate. I do not think that in the end your Lordships will be concerned with the point of law, which in any case is not really a suitable subject for Division in the House. Indeed, I have taken it up with the noble Lord, Lord Williams, who has dealt with it with his usual courtesy and promptness. However, I think that your Lordships will not, as a result of his latest letter, be concerned with an argument that the provision which is sought to be excluded does other than state the existing law. I see the noble Lord nodding and so I shall proceed on that basis. I know that he has an alternative argument with which I shall deal in due course.
Clause 1(2) states:
"The Assembly shall be a body corporate".
Since it is more than a one-member assembly, that constitutes a corporation aggregate. It is a quality of corporations aggregate that the decision of a majority binds the minority. Perhaps I ought to try to make that good by reading from the classic book on the subject, Grant on Corporations. The chapter is headed "Majority". It states:
"The principle has been already laid down, that a corporation acts by the majority, or that the will of the majority is the will of the corporation, and binds the minority".

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It expands on that. The next paragraph states:
"The rule of acting by the majority is so fully established as a principle of corporation law".
It goes on to state:
"Subject, then, to the foregoing remarks, and to the further restriction … the will of the majority binds the whole body, such will being in all cases collected at a corporate assembly duly constituted, and not from the aggregate of the assents of the corporators obtained separately and apart, for that would not be a corporate act".
Since the will of the majority expressed in a meeting binds the minority, there is no need at all to say that a vacancy does not invalidate the proceedings; nor, what is sought to be removed by Amendment No. 24, that a disqualification does anything different. It follows that the provision is unnecessary as a matter of law. If it were not there, the law would do itself what the subsection does.
However, when I took the matter up with the noble Lord the Minister his first reaction—an evading action—was that we were concerned with powers, vires, not with existence. That had always of course been the point. He went on to say that there were precedents for such a provision. That is the usual argument when you have unnecessary provisions in a statute. He went on to say—I think it was in a later letter—that there was a danger, therefore, if it were left out, that someone would argue that that was significant and it meant that the normal law would not apply. Well, of course, you cannot prevent people arguing that black is white and white is black. Indeed, Jonathan Swift said that lawyers were a race of people who were employed to argue black was white and white was black, according as they were paid. I need not tell your Lordships that Swift had recently lost a law suit. It is not true of course. We cannot really stuff the statute book full of anticipation of every silly argument that might be adduced. I believe that that is the position which the noble Lord finally adopted. We are not bound to go on perpetrating an unnecessary nonsense, and there is every reason why we should not do so.
The argument could be put the other way. There are hundreds and hundreds of corporations, both in common law and statutory law. It could well be argued that the presence of this provision in one or two statutes means that the normal law does not apply in all the other corporate bodies.
Finally, if there were any doubt about it, and if a silly argument were put forward, the courts now have the power under certain circumstances to look at what was said in Parliament. That was the decision of your Lordships' House in Pepper v. Hart. I welcome the support of the noble Lord, Lord Renton. I welcome the support of my noble and learned friend Lord Brightman since he is the leading authority on what is the most important class of corporation aggregate today; namely, commercial companies which are incorporated. The
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time has come to bring this nonsense to an end, and this is the time to do so. It will enure for the future. I beg to move.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I must point out to your Lordships that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.
Lord Brightman: My Lords, I wish to support the amendment. In my submission there is no valid reason for the existence of subsection (7) of Clause 2, which this amendment seeks to strike out. The subsection reads,
"The validity of proceedings of the Assembly is not affected by any vacancy in its membership".
It is inconceivable that the proceedings of a body exercising ministerial functions could be brought to a standstill because a member of that body has died or chooses to resign. That is particularly so when one considers that under Clause 8(6) the vacancy so arising could not be filled during the final three months of the statutory lifetime of the then assembly. The argument would mean that if, for example, a member resigned his seat or died in the second week of February in year four, no election could take place to fill the vacancy. The assembly would be hamstrung until after the election three months later. In my respectful submission it is a bad policy to build unnecessary clauses into parliamentary drafting for the avoidance of untenable doubts.
Lord Renton: My Lords, the arguments in favour of Amendment No. 1 have been so clearly and forcefully put already that I can make my speech very short. I do not wish to repeat those arguments, but, daringly, because this is Report stage, I shall attempt to anticipate the reply which may be given.
The noble and learned Lord the Solicitor-General, may well rely on previous occasions when a similar phrase has been used, and a similar precedent. The circumstances of the Bill are different from those which have arisen in the past when such a phrase has been used. It would be absurd and wrong for us to perpetuate what the noble and learned Lord might claim is a precedent when it does not need to apply in this case, as has been mentioned by the two noble and learned Lords.
The Government should reconsider the matter. I believe that this Session of Parliament is likely to be the longest since the Second World War. Parliament is being asked to get through an immense amount of legislation, which goes into a vast amount of detail, much of which some of us consider to be quite unnecessary. Therefore, if there is a doubt I suggest that it should be resolved in terms of brevity. That is a good point in itself. But here we really must avoid creating an unnecessary precedent for the years to come.
Lord Hooson: My Lords, from these Benches I do not wish to sound repetitive. Having heard the arguments of the noble and learned Lords in particular, it seems to us that the onus has shifted on to the Government to satisfy the House that subsection (7) of

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Clause 2 and subsection (5) of Clause 14 are not superfluous to requirements. If they are, why have them in the Bill?
The Earl of Balfour: My Lords, I am grateful that this amendment has been tabled. I apologise to your Lordships. I am always slow in thinking. Clause 2(7) states:
"The validity of proceedings of the Assembly is not affected by any vacancy in its membership".
There is no provision for a quorum either in this Bill or in the Scotland Bill. For example, in this House, as I understand it, 30 Members form a quorum. The provision for a quorum should be firmly established on the face of the Bill. I am somewhat surprised that nothing to that effect is in the Bill. I wonder why.
Lord Monkswell: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said in effect that a body of law stated that a simple majority of a body corporate meeting together was enough to determine the outcome. I believe that later in the Bill there is provision that the standing orders of the assembly can be altered only if there is a two-thirds majority.
If the existing law on the decisions of a body corporate made by a simple majority can be varied by later provisions in the Bill, the implication is that the decisions of the body corporate could be invalidated by there not being a full number of that body, unless that is specifically written into the Bill. As a layman and non-lawyer, while I would argue that there could be a simple majority for the determination of standing orders, I appreciate that that is not on the face of the Bill at present. As we are not at Committee stage it is difficult to have a debate. When the noble and learned Lord, Lord Simon, winds up, perhaps he can give me some advice on the relevance of the two-thirds majority to the decisions of the body corporate which, as he pointed out, should be on the basis of a simple majority.
3.30 p.m.
Lord Roberts of Conwy: My Lords, we are all grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing these two amendments. I am particularly grateful to him for the simple reason that I have been taking some pride in the abilities of your Lordships' House as a revising Chamber because since this Bill has been with us it has grown in size considerably. Although I have on all occasions welcomed such growth, particularly since it has resulted for the most part from amendments and changes introduced by the Government, I would nevertheless not like to think that any of the augmentation was not fully justified. The noble and learned Lord has drawn our attention to the possible unnecessary aspects of the two subsections.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, I think that we would all agree that there should not be any unnecessary prolixity in Acts of Parliament. I am sure that we would all share the views expressed by the noble and learned Lord,
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Lord Simon of Glaisdale, in that respect. I am sure that we would all also agree that we should, if possible, try to get legislation right without reference to Pepper v. Hart. We should try to make legislation explicable in the terms in which it is put on to the statute book. It is an unhappy result if those seeking to construe the legislation have to read the debate in order to determine what the legislation means.
I respectfully suggest that the two provisions which the noble and learned Lord seeks to remove are justified—and they are justified in order to avoid debates. Similar provisions have been included in a number of Acts stretching back well over 100 years. I refer to the Public Health Act 1875, the Municipal Corporations Act 1882, the Local Government Act 1894 and, more recently, the Local Government Act 1972. The fact that it has been done before does not mean that it has to be done again, but the fact that such provisions are there in previous Acts means that lawyers, no matter how regrettably, will seek to draw an inference from their absence from this Bill to say that there must be some significance in it. It may well be—indeed, I think it more likely than not—that any court confronted with the point would go along with the argument so eloquently put by the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, but we must think of the uncertainty that would exist while that point was being resolved: one vacancy in the membership, leading to somebody taking this point, thereby providing a cloud over the proceedings of the assembly until the point has been resolved.
A sensible view must be taken of where the balance has to be struck. Should one take the view that one should strike the balance in a place where one gets rid of the point altogether or does one simply leave it out and recognise that the point might be taken and lead to uncertainty for a period of time? We think that the balance is struck by getting rid of the point once and for all. In relation—
Lord Renton: My Lords, before the noble and learned Lord sits down, could he say whether in any of the previous legislation that he has mentioned the clauses which he says form a precedent have turned out to be decisive and necessary?
Lord Falconer of Thoroton: My Lords, I cannot answer that question, but I can quote from a former Lord Chancellor, Lord Birkenhead, in 1919 when dealing with a similar clause. He said:
"A moment's reflection will show how many cases might arise in which great annoyance, inconvenience and expense might be entailed by a controversy of this kind without any gain of any kind to the public interest. I think therefore that Parliament, in order to avoid such actions and objections determined to use language of a similar wideness".
Lord Ackner: My Lords, I am grateful to the noble and learned Lord for giving way, but as one of the six Law Lords responsible for Pepper v. Hart, perhaps I may ask whether the quotation that he has just given

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has not been totally cancelled by that decision? Pepper v. Hart would put an end to this point, if the point were taken.
Lord Falconer of Thoroton: My Lords, first, that quotation from Lord Birkenhead does not cancel out the point. The point is that if that provision is not in this statute, people might take the point. Secondly, I am sure that I am right when I say that it is much better for statutes to be construed by reading them rather than the debates that led to them. For all of those reasons and with the greatest diffidence, I respectfully suggest that the judgment that the Government have made is correct and that to avoid doubt we should leave in those provisions.
Viscount Bledisloe: My Lords, before the noble and learned Lord sits down, he has cited certain statutes in which this provision appears. Is he suggesting that there is a similar provision in every statute that has been passed in which Parliament has set up a corporation aggregate? If not, is there not already an anomaly, and are not the Government merely seeking to perpetuate that anomaly? If the noble and learned Lord can assure us that there is a similar provision in every case where a corporation aggregate has been set up, I see the strength of his point.
Lord Falconer of Thoroton: My Lords, I am afraid that I cannot give the noble Viscount that assurance because I have not looked at every statute which sets up a corporation aggregate. However, all the statutes on which I have relied look like statutes setting up semi-public bodies where the point is obviously of great importance that there should not be a shadow over their proceedings when there is a vacancy.
Lord Simon of Glaisdale: My Lords, I am most grateful to those who have contributed to this debate. We have now heard from two of my noble and learned friends, from the noble Lord, Lord Renton, and from two eminent Queen's Counsel, the noble Lord, Lord Hooson, and the noble Viscount, Lord Bledisloe. That is a formidable body. I know that it does not intimidate the noble and learned Lord the Solicitor-General, but I am entitled to say that five Members of your Lordships' House are supporting me, with only the noble and learned Lord the Solicitor-General against me.
The noble and learned Lord used his favourite phrase, "We think the Government have got the balance right". That really will not do. The noble and learned Lord must answer the argument. He did not refer at all to the argument that these statutory provisions are equally liable to give rise to an argument that where they are not in the provisions of any statutory or non-statutory corporation, a vacancy invalidates the proceedings; nor did the noble and learned Lord answer the point about Pepper v. Hart.
In the end it comes down to this: the Government's argument is that because something unnecessary has been done four or five times in the past 130 years, we must go on doing unnecessary things to the inflation of
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the statute book. That simply will not do. Your Lordships are, I think, likely to say, "Enough is more than enough".
I must answer the noble Lord, Lord Monkswell, who valuably, with his eagle eye, spotted the provision for an entrenched majority in relation to the standing orders. They are perfectly reconcilable. The general rule applies to all corporations, in the absence of other statutory stipulation, that a decision of the majority binds the minority. I imagine that it is the same in Scotland too—I now see the noble and learned Lord the Lord Advocate in his place—but that is subject to statutory exception. Parliament can always say that on one particular matter more than a mere majority is required, and that is the position here. A majority binds the minority except when it comes to alteration of the standing orders where there must not be merely a simple majority but a two-thirds majority. That does not invalidate these amendments.
I respectfully agree with my noble and learned friend Lord Brightman that the argument put forward by the noble and learned Lord the Solicitor-General is simply untenable. It is quite wrong to believe that counsel will put forward any ridiculous argument that may be suggested to them. They owe a duty to the court not to put forward absurdities. The argument that without this statutory provision a vacancy or a disqualification invalidates would be a complete absurdity.
This issue is not a matter on which to divide the House if it can be avoided. I do not despair that the Government having gone so far may not reflect further and see wisdom. At this stage I shall seek to withdraw the amendment so that I may still have it in hand at Third Reading if the Government adhere obstinately to the position that they have adopted. I beg leave to withdraw the amendment.
Lord Callaghan of Cardiff: No!
The Chairman of Committees: My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Noble Lords: No!
On Question, amendment negatived.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 2:
Page 2, line 14, leave out ("proceedings of") and insert ("anything done by").
The noble and learned Lord said: My Lords, Amendments Nos. 2, 25 and 29 are grouped together. These amendments are essentially drafting amendments consequential upon changes agreed in Committee about the provisions relating to defamation now set out in Clause 77. As the Bill is currently drafted, the term "proceedings" has a narrow interpretation: it is limited to the business that is formally transacted in sessions of the assembly or in its committees and sub-committees. For this reason

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the term "proceedings" in Clauses 2, 14 and 20 is now ambiguous. The purpose of the amendments is to bring clarity to the drafting. I beg to move.
Lord Simon of Glaisdale: My Lords, as the noble and learned Lord has said, these are drafting amendments. They do not affect the point made on the previous amendment. It was most unfortunate that your Lordships were manoeuvred into the Question being put on the previous amendment. I do not believe that the Government will be proud when this matter is considered by public and constitutional lawyers. It is a most extraordinary procedural line to take for a government who claim to be a modernising government. We are saddled with a nonsense purely because a nonsense has been perpetrated in the past. Is that the act of a modernising government?
Lord Callaghan of Cardiff: My Lords, it was not the act of the Government. I called "No" when the noble and learned Lord begged leave to withdraw the amendment. The noble and learned Lord spent 35 minutes telling noble Lords what should happen and described what was proposed as an absolute nonsense. He said that the matter should be withdrawn from the Marshalled List and then refused to vote. I wished to vote upon it and record my disagreement with the noble and learned Lord. That is not a manoeuvre but a proper procedure of the House. I hope that next time the noble and learned Lord expresses his views in no uncertain language he will pursue the matter to the end.
Lord Simon of Glaisdale: My Lords, after all these years I am not disposed to quarrel with the noble Lord, Lord Callaghan of Cardiff. I stand by what I said. I do not believe that what has happened today will reflect any credit on the Government.
Lord Falconer of Thoroton: My Lords, I am grateful to my noble friend Lord Callaghan of Cardiff for making clear that it was not the Government who called for the Question to be put on the previous amendment. The point made by the noble and learned Lord has nothing to do with the amendment that I now move and I say nothing more about it at this stage.
On Question, amendment agreed to.
3.45 p.m.
Clause 3 [Time of ordinary elections]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 3:
Page 2, line 32, leave out from ("may") to first ("the") in line 37 and insert ("make provision for—

(a) any provision of, or made under, the Representation of the People Acts, or

(b) any other enactment relating to elections of community councillors,

to have effect with such modifications or exceptions as").
The noble and learned Lord said: My Lords, Amendment No. 3 arises from your Lordships' approval at Committee stage of an amendment enabling the
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Secretary of State to make modifications to the statutory procedures relating to community council elections. The power to make modifications could be exercised only when it had been necessary to postpone the date of the community council elections and then only where modifications were appropriate for the proper and effective conduct of those elections. At that time, I explained that the need for the modification had come to light as we considered the practicalities of moving the community council elections in Wales from 6th May next year and combining them with the European parliamentary elections to be held on 10th June. Amendment No. 3 refines that power so as to allow the Secretary of State to modify or except procedures which, in the circumstances of postponement, would hinder the ability of returning officers to conduct the elections in a proper and effective manner.
Some concerns were expressed in Committee about whether the Secretary of State would be able to manipulate the staging of the community elections to his party's advantage. I believe that it would be helpful if I outlined the developments which led the Government to propose Amendment No. 3 and thus reassure your Lordships of the intent behind the new provision. If the community council elections in 1999 are held on the same day as the European parliamentary election the two polls will be combined by virtue of Section 15(1)(c) of the Representation of the People Act 1985. Section 15(4) of the 1985 Act requires that the cost of taking the combined polls, excluding any cost solely attributable to one election, and any cost attributable to their combination shall be apportioned equally among the elections. Under Section 36(5A) of the Representation of the People Act 1983 the expenditure incurred by the returning officer in relation to the holding of a community election is, subject to the provisions of that section, paid by the principal council in which the community is situated. In Wales the principal council is the unitary council. That council in turn may seek reimbursement from the community council concerned.
In the circumstances of the proposed combination in June next year the conduct of the European elections will be the responsibility of the Home Office. By virtue of Section 15(4) of the 1985 Act the Home Office would be obliged to seek reimbursement of 50 per cent. of the costs of the combined elements of the two elections from the principal councils. Those councils in turn would almost certainly seek reimbursement from their community councils for the costs attributable to the community council elections. This would be a considerable financial burden on the community councils and we wish to avoid that.
Amendment No. 3 therefore enables the Secretary of State, when making an order under Clause 3(4) of the Bill, to modify or omit provisions of Section 15(4) of the 1985 Act to the extent that where otherwise a cost is to be apportioned equally between elections the order may specify that the apportionment may be different but only to the advantage of a community election. The modifying provision could not re-order the apportionment which fell to the local authorities to be any more than the existing 50 per cent. It could however specify that the apportionment should be set as low as

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nil. The precise level of the apportionment would have to be agreed by the Secretary of State and the other interested authority (the Home Office or assembly if the community council elections were combined with assembly elections) in advance of the order being made. Amendment No. 3 ensures that the Secretary of State is able to take action as appropriate. I repeat that this provision can be used only in circumstances where the Secretary of State has decided to postpone the community council elections and any changes must be appropriate in connection with the postponement. He may not decide to change any provision simply because he may have a mind to. The order-making power will not enable him to re-write the rules governing the conduct of the community council elections. Once the assembly has been established the Secretary of State will be able to exercise that power only if he has first consulted the assembly so that it too would be a party to any proposal to make consequential changes to any related statute procedure.
I apologise for the length of this explanation. I beg to move.
On Question, amendment agreed to.
Clause 4 [Voting at ordinary elections]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 4:
Page 3, leave out lines 5 to 7.
The noble Lord said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 13, 14 and 15. Taken together these amendments change the part of the Bill which deals with the electoral system. As the Bill stands—along with the European Parliamentary Elections Bill and the Scotland Bill—the list which is to be used in order to decide the additional members is to be submitted by the political parties and drawn up by the political parties. It is therefore a closed list. The electorate, as such, has no opportunity to indicate whether it prefers one of a party's candidates as opposed to another of its candidates.
We discussed these matters in some detail on the European Parliamentary Elections Bill, and I do not want to go over the ground again. I recognise that a number of your Lordships are taking an interest in the Welsh Bill and not in the European Parliamentary Elections Bill. If I cover ground that we have already discussed, then I apologise to those who, like myself, are debating all three Bills. It is necessary to explain why it is important that there should be an open list.
There are a number of ways of tackling the question. We have discussed what is called the Belgian system. In this people can vote either for the party or for the individual. I do not wish to explain why I do not approve of the Belgian system. I recommend a speech I made in Committee on the European Parliamentary Elections Bill to those of your Lordships who wish to know why I am suspicious of it.
The point about the Belgian system is that one has the option of voting for a party or an individual. The amendments I have tabled remove the chance to vote for the party. For example, if one wishes to vote for Conservative candidates one must vote for a Conservative candidate and not for the Conservative
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Party as such. After the votes are cast the first action of the returning officer would be to add up all the votes cast for the candidates of each party, and the total vote would then be the total vote for the party. These total party votes would then be used, via the d'Hondt system, to calculate the number of additional members that each party receives.
There are four additional members in the Welsh system, of which one party might receive two and the other two parties one each. The returning officer would then go, for example, to the party with the two additional seats, go to its list, and select the candidates who had the largest vote of the electorate.
The system in the Bill would have the returning officer simply selecting the party apparatchiks' first choice. My system would have the returning officer selecting the most popular candidate in that party, the candidate who had received the largest vote. It would therefore be a matter for the supporters of each party to decide which individual candidate would be elected. That is why it is called the open list.
As we have seen in both Wales and Scotland the danger of the Government's proposition in selecting the lists is that there is an effort at cleansing the list of those people who the governing party might think are part of the awkward squad, especially by the Labour Party. I am told that they are called loyalty test questions. That is very much up to the party opposite. The electoral system would be brought into disrepute if the electorate felt that it had to vote for a party and had absolutely no say about the choice of the individual candidates who should rank in first, second, third or fourth place in the Welsh system.
The open list is fair, clear and gives the electorate not only the opportunity to indicate which party they wish to support but the candidate within that party. A number of your Lordships who have intervened in debates on other issues, especially the European Parliament issue, may feel moved to intervene today. We can see if there is a measure of support in your Lordships' House to move from the closed list system—which is fundamentally anti-democratic—to the open list system. In case anyone chides me, my decision to table amendments to the additional member system in no way negates my feeling that we would be far better off with a system of first past the post. I beg to move.
Lord Thomas of Gresford: My Lords, we on these Benches commend the noble Lord, Lord Mackay of Ardbrecknish, for his deep study of the proportional representation systems and for the enthusiasm with which he advances the proposals of an open list. These are arguments which we have advanced over many years and we enjoy seeing any convert. However, we take the view that it is important that this Bill gets on the statute book as soon as possible and we do not propose to hold up Government business by supporting this amendment.
Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Mackay of Ardbrecknish, made clear, this group of amendments would introduce "pure" open lists for the electoral region element of the additional member system to be used for the assembly elections. We believe

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that open lists in the context of that system constitute a complexity which would serve only to confuse the electorate and the electoral process. Voters would have to cast their vote either for a named candidate of one of the political parties which had put forward a list, or for an independent who was standing in the electoral region. There would be no opportunity to vote for a party list as submitted by the party. That is what the noble Lord, Lord Mackay of Ardbrecknish, intends with these amendments.
Under the Government's proposals, voters will be asked to make two decisions in the polling booth: to vote for a constituency member and to vote for the additional members for the electoral region in which the constituency is located. The election of the constituency member will be by the same process as applies for the election of MPs to another place, but the additional members' election is a completely new procedure. There will be new duties for electors to perform and new terminology for them to assimilate. In this context there is considerable virtue in making the additional member selection simple and straightforward. This is why we have decided that the selection should be by a method whereby voters are given a straightforward opportunity to vote for the party whose list they wish to support or for an independent who may be standing for the electoral region.
An open list consisting of candidates' names only could well give rise to results which were inconsistent with the votes cast by voters for individuals on the party lists. The process of allocating the additional member seats is dependent upon the total number of party list votes each party wins, having regard to the number of individual constituency seats also won by that party. In a pure open list system, the total number of party list votes is the sum of the votes cast for each of the individual candidates on the list.
An example will help illustrate my point about inconsistencies. Take two parties, neither having won any constituency seats in a particular region. It is conceivable that the total vote for party list 1 although high may rely very heavily upon the votes cast for one individual on that list; the other candidates on the list may have polled very lightly. Party 2 may not have had such a large total list vote, but that total might not be so heavily dependent upon one individual and two candidates may have received more votes than all but the first candidate of party 1. Party 1, on the strength of the total votes cast for its candidates, is entitled to two of the additional member seats. The first seat would be allocated to the candidate with the very high personal vote; the second would be won by the second highest poling candidate on the list, who has actually polled very low. Party 2, however, is entitled to only one additional member seat, which would be allocated to its highest polling candidate. The second highest polling candidate for party 2 would not be entitled to a seat, despite the fact that he or she had received a personal vote higher than that achieved by the second candidate of party 1, who had won a seat.
The proposal made by the noble Lord, Lord Mackay of Ardbrecknish, leads to the electorate choosing Mr. A from party 1 and Mr. B and Mr. C from party 2, and it gets Mr. A and Mr. D from party 1. That apparent
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inconsistency between the wish of the voters as expressed in their votes for individuals on the party list and the subsequent allocation of seats would be very difficult and embarrassing to explain to voters and would appear to be a negation of democracy. The successful second candidate for party 1, who had been elected in this example, would also have great difficulty, I suspect, in establishing himself as a credible representative of the area from which he had come.
There is a possible further inconsistency in the example given by the noble Lord, Lord Mackay of Ardbrecknish. It will be open to candidates to stand for the constituency and for the electoral region. However, if the candidate wins election for a constituency then his or her name is discounted from the party list for the purposes of allocating the additional member seats. What if that person was the one who had attracted the greatest number of individual votes on the list? Should the party be entitled to the additional member seats allocated to it on the strength of votes cast for someone who, following his constituency success, is no longer on that list, particularly if the other candidates had been much less favoured by the electors?
The ballot paper for an open list election is detailed and complex. The names of all candidates for a party list would have to be listed on the ballot paper. Party lists may comprise up to 12 names. Voters would have to decide between placing their mark either beside the name of one candidate on a party list, or for an independent. I believe that there would be considerable scope for voter confusion.
Returning to our proposal, voters will not be asked to make their selection for the electoral region in the absence of information about the candidates on each party list or their order of priority on the list. We are proposing that notices will be prominently displayed in every polling station, listing each party's list candidates in the correct order. It will also be open to the parties to distribute details of their lists to the electorate beforehand. The choice will be an informed one and voters will know when casting their vote for the additional members exactly who is most likely to be elected from each party.
Our essential objection to open lists in AMS elections is our interest in keeping the procedure as simple as possible. We do not believe that the closed list procedure represents any diminution in voters' powers of choice. Voters will have a clear idea of whom they are voting for on a list and the order in which the candidates from that list will be elected. If a voter disagrees with the list of names he or she can vote for another party list or for an independent.
I note that no noble Lord spoke in support of the amendment moved by the noble Lord, Lord Mackay of Ardbrecknish. That was no doubt because they were aware that it would lead to anomalies of the sort to which I have referred and would make extremely complicated that which should be sensible. In all the circumstances, I invite the House to reject the amendment.
Lord Callaghan of Cardiff: My Lords, before my noble and learned friend sits down, and with the leave of the House, I cannot pretend that I followed everything

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that he said. If anyone can make a difficult subject clear, it is the Solicitor-General. If he made one thing clear to me—if he will allow me to say so—it is that I am absolutely confirmed in my position that first-past-the-post is easily the best system.
Lord Mackay of Ardbrecknish: My Lords, I am glad that the noble Lord, Lord Callaghan of Cardiff, intervened there, because if the noble and learned Lord the Solicitor-General did anything, he illustrated the complexities of the proportional representation system. He also suggested that the electorate might not be able to understand my system. Dare I say that he underestimates the intelligence of the electorate? It will be able to understand my system every bit as well as it will be able to understand the Government's system, or any other system brought forward under proportional representation.
I hope that the noble Lord, Lord Thomas of Gresford, does not become too excited by what he sees as my conversion to proportional representation. I can assure him that it is not a conversion at all; I am just trying to improve what I think is a bad lot. I, like the noble Lord, Lord Callaghan, would prefer to stick to first-past-the-post.
I do not believe that my system is all that much more complex. For example, I noticed that the noble and learned Lord made much of the fact that the electorate might find that someone with a lesser vote would be elected when someone with a greater vote might not be. He pointed out that a popular person might be elected for a constituency, and might be at the head of the list and receive a great number of votes over the region, which would pull other people through on his or her coat tails.
That could happen already, because unless the Government intend to keep the list secret, there may well be someone at the head of the list who is popular and who would be elected for a constituency, and who would pull in a lot of votes on the second vote of people thinking that they are voting for the person at the head of the list. That person is elected for a constituency and, lo and behold, the electorate finds that its votes have been used to elect No. 2 or No. 3 on the list, when they really voted for that list because of No. 1 on the list.
Whether it is my system, or that of the noble and learned Lord, his objection is an objection to both systems, and not specifically to mine. I believe that the electorate will find it easy to understand the principle. The basic point is the additional member seats—the additional members for the party. The electorate should be given a choice of the parties' candidates for those additional member seats. It is straightforward. I have no trouble in understanding it. One could explain it relatively easily to the electorate.
The electorate will not like being presented with a list where it knows that candidates that it would prefer have been knocked out, or put in a low position, because the
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rulers of the party—whichever the party—at a particular moment do not want a particular wing of the party to be represented. That could be true of all political parties now and in the future. An open list would be a considerable improvement on a closed list, and I think that I would like to take the view of the House.
4.8 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 106; Not-Contents, 120.

Division No. 1

CONTENTS

Aberdare, L.

Kintore, E.

Ailsa, M.

Kitchener, E.

Aldington, L.

Layton, L.

Alexander of Tunis, E.

Leigh, L.

Alton of Liverpool, L.

Lucas of Chilworth, L.

Ampthill, L.

McColl of Dulwich, L.

Anelay of St. Johns, B. [Teller.]

McConnell, L.

Ashbourne, L.

Mackay of Ardbrecknish, L.

Balfour, E.

Mackay of Drumadoon, L.

Balfour of Inchrye, L.

Mersey, V.

Beloff, L.

Milverton, L.

Berners, B.

Monro of Langholm, L.

Bethell, L.

Mottistone, L.

Biffen, L.

Mountevans, L.

Blatch, B.

Mowbray and Stourton, L.

Bledisloe, V.

Moyne, L.

Boardman, L.

Munster, E.

Brabazon of Tara, L.

Naseby, L.

Braine of Wheatley, L.

Newton of Braintree, L.

Bridges, L.

Northesk, E.

Broadbridge, L.

Norton, L.

Brougham and Vaux, L.

Onslow of Woking, L.

Byford, B. [Teller.]

Oxford, Bp.

Cadman, L.

Oxfuird, V.

Carnegy of Lour, B.

Palmer, L.

Carrick, E.

Pender, L.

Chorley, L.

Peyton of Yeovil, L.

Clanwilliam, E.

Pilkington of Oxenford, L.

Courtown, E.

Rees, L.

Cranbrook, E.

Roberts of Conwy, L.

Crickhowell, L.

Rotherwick, L.

Cross, V.

Rowallan, L.

Cumberlege, B.

Russell, E.

Dacre of Glanton, L.

St. John of Bletso, L.

Davidson, V.

Savile, L.

Dean of Harptree, L.

Sharples, B.

Denton of Wakefield, B.

Simon of Glaisdale, L.

Dixon-Smith, L.

Skidelsky, L.

Dunleath, L.

Stanley of Alderley, L.

Ellenborough, L.

Sudeley, L.

Elton, L.

Swansea, L.

Erroll, E.

Swinfen, L.

Foley, L.

Tebbit, L.

Fraser of Carmyllie, L.

Tenby, V.

Freyberg, L.

Teviot, L.

Gainford, L.

Teynham, L.

Halsbury, E.

Thomas of Gwydir, L.

Harmar-Nicholls, L.

Trumpington, B.

Holderness, L.

Vivian, L.

Hood, V.

Warnock, B.

Hylton-Foster, B.

Weatherill, L.

Ilchester, E.

Ironside, L.

Jopling, L.

Kenyon, L.

687

NOT-CONTENTS

Acton, L.

Judd, L.

Addington, L.

Kennet, L.

Avebury, L.

Kilbracken, L.

Barnett, L.

Kirkhill, L.

Beaumont of Whitley, L.

Lockwood, B.

Berkeley, L.

Lofthouse of Pontefract, L.

Blackstone, B.

Ludford, B.

Blease, L.

McIntosh of Haringey, L. [Teller.]

Borrie, L.

Brooks of Tremorfa, L.

McNair, L.

Bruce of Donington, L.

McNally, L.

Burlison, L.

Mallalieu, B.

Calverley, L.

Mar and Kellie, E.

Carlisle, E.

Merlyn-Rees, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Carter, L. [Teller.]

Molloy, L.

Castle of Blackburn, B.

Monkswell, L.

Cledwyn of Penrhos, L.

Montague of Oxford, L.

Clinton-Davis, L.

Morris of Manchester, L.

Cocks of Hartcliffe, L.

Ogmore, L.

David, B.

Orme, L.

Davies of Oldham, L.

Peston, L.

Dean of Beswick, L.

Plant of Highfield, L.

Desai, L.

Prys-Davies, L.

Dholakia, L.

Ramsay of Cartvale, B.

Dixon, L.

Randall of St. Budeaux, L.

Donoughue, L.

Razzall, L.

Dormand of Easington, L.

Rea, L.

Dubs, L.

Redesdale, L.

Eatwell, L.

Rendell of Babergh, B.

Elis-Thomas, L.

Richard, L. [Lord Privy Seal.]

Evans of Parkside, L.

Rochester, L.

Ezra, L.

Rodgers of Quarry Bank, L.

Falconer of Thoroton, L.

Sainsbury, L.

Farrington of Ribbleton, B.

St. Davids, V.

Gallacher, L.

Serota, B.

Geraint, L.

Sewel, L.

Gladwin of Clee, L.

Shepherd, L.

Glenamara, L.

Simon, V.

Goodhart, L.

Simon of Highbury, L.

Graham of Edmonton, L.

Smith of Gilmorehill, B.

Gregson, L.

Stallard, L.

Grenfell, L.

Steel of Aikwood, L.

Hacking, L.

Strabolgi, L.

Hardie, L.

Symons of Vernham Dean, B.

Hardy of Wath, L.

Taverne, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Haskel, L.

Thomas of Gresford, L.

Hayman, B.

Thomas of Macclesfield, L.

Hollis of Heigham, B.

Thomas of Walliswood, B.

Holme of Cheltenham, L.

Thurso, V.

Hooson, L.

Tope, L.

Howie of Troon, L.

Tordoff, L.

Hoyle, L.

Turner of Camden, B.

Hughes, L.

Watson of Invergowrie, L.

Hunt of Kings Heath, L.

Whitty, L.

Irvine of Lairg, L. [Lord Chancellor.]

Wigoder, L.

Williams of Elvel, L.

Islwyn, L.

Williams of Mostyn, L.

Janner of Braunstone, L.

Winchilsea and Nottingham, E.

Jenkins of Putney, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 5 [Party lists and individual candidates]:
4.17 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 5:
Page 3, line 24, at end insert (", provided that there is a candidate of the party in each Assembly constituency included in that Assembly electoral region.
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(1A) A registered political party shall submit a list of candidates to be Assembly members for each Assembly electoral region in which there is a candidate of the party in at least one of the Assembly constituencies included in that Assembly electoral region.").
The noble Lord said: My Lords, if your Lordships thought that the previous argument was complicated I regret to say that this is even more so. However, that is the problem with proportional representation in its various forms. In moving Amendment No. 5, I shall speak also to Amendments Nos. 6, 7, 8 and 9. All are variations of a way of dealing with a matter which all Members who spoke in Committee agreed was a problem. I apologise to noble Lords who were present in Committee for repeating the argument, but I do so for the sake of those who were not present and in order to remind ourselves of the problem.
In the system of additional member seats there are two votes. One is for the constituency and the other is for the list for the region. Calculations are made following the d'Hondt system (named after the mathematician who devised it) to determine how many of the four seats additionally available each party should receive. Those seats are then given to the appropriate party and thus an attempt is made—although not a good attempt in the case of four additional member seats—to introduce proportionality into the total system. The additional member proposal in the Welsh and Scottish systems leads to the proportionality.
I can best illustrate the problem by sharing with your Lordships a little trick which the Conservative Party could have played in the Wales North Euro seat in the 1992 elections. On the first-past-the-post wins in that seat, the Labour Party gained four, the Conservatives gained two, the Liberal Democrats none and Plaid Cymru two. If one assumes that the first and second votes are the same—that may not turn out to be true but one must make that assumption for the sake of the illustration—when the d'Hondt system is calculated, the Labour Party gets one additional member, the Conservatives two, the Liberal Democrats one and Plaid Cymru none. So the total is five for Labour, four for the Conservatives, one for the Liberal Democrats and two for Plaid Cymru.
However, if the Conservatives decided to stand as Conservatives in the constituency ballot but to register another party called, for example, the Welsh unionist party—and under the Registration of Political Parties Bill that is possible—and in the second ballot the Welsh Conservative Party does not stand at all but the Welsh unionist party does, Conservatives, being intelligent people, would understand that they should vote unionist in that second ballot and proceed to do so. When the d'Hondt system is then applied, the Labour Party wins no additional seats; the unionists win three additional seats; the Liberal Democrats win one; and Plaid Cymru wins none. Therefore, the Conservatives and unionists together in the Welsh Assembly, instead of having four seats under the system which I mentioned first, would gain an extra seat and win five seats. There would be considerable advantage to the Conservative Party in doing so.
If one takes the last election and still uses the Wales North Euro seat and splits the Labour Party into the Labour Party for the first ballot and the co-operative party for the other ballot, this is what would happen. At the last election the Labour Party gained six first-past-the-post seats; the Conservative Party gained none; the Liberal Democrats none; and Plaid Cymru gained two. On the additional member system seat without split parties, the Labour Party would gain no more seats; the Conservatives would gain three; the Liberal Democrats would gain one and Plaid Cymru would gain none. Therefore, Labour would end up with six seats all from first-past-the-post while the Conservatives would win three seats, all from the additional member system; the Liberal Democrats would win one seat from the additional member system; and Plaid Cymru would have the two that it won from the first-past-the-post.
However, the Labour Party may decide to register the co-operative party as a separate party, which in my view is perfectly possible under the Registration of Political Parties Bill, and stand in the second ballot. The electorate would understand perfectly well what was happening and would probably approve because it gives advantage to one's own party. When the d'Hondt system was used, the co-operative party would gain three additional member seats; the Conservatives would gain one; the Liberal Democrats would gain none; and Plaid Cymru would gain none. Therefore, the Labour Party would end up with nine seats for that area, the Conservatives one, Plaid Cymru two and the Liberal Democrats none, as opposed to six, three, two and one if the system were carried out fairly and properly.
As I said in Committee, that is not something which has been devised by me. This is a suggestion first brought to the attention of the political parties by Dr. Dyer of Aberdeen University who did the calculations and put out the suggestion in the Scottish context with regard to the Labour Party and the Co-operative Party. But in the other place on the Welsh Bill the question was raised and Mr. Win Griffiths said:
"I concede that there may be scope for collusion between and within parties to exploit the two-ballot structure of the additional member system in the manner that he described. Such cynical manipulation of the system would be an affront to the electorate and would undermine the democratic credibility of the elected body".—[Official Report, 2/3/98: col. 804.]
I am not sure that I totally agree with him as regards that last sentence.
In Committee, all noble Lords who spoke accepted that the scenario which I painted could come about. I had cast-iron assurances, which I accept, from the noble Lord, Lord Williams of Mostyn, that the Labour Party would not do anything like that. The noble Lord, Lord Thomas of Gresford, gave assurances that the Liberal Democrats would not do anything like that, as did the noble Lord, Lord Elis-Thomas, on behalf of Plaid Cymru. I gave assurances that the Conservative Party would not do that. But the blunt fact of the matter is that four honest gentlemen as we may be, we shall not be there for ever and somebody in the future may decide to overturn our pledges and to use that trick.
What I have suggested is a way to link the first and second ballot together so that parties can stand in one and not in the other. I have put forward various different methods. The first is what I shall describe as the hardest method, which is that you can only stand in the list if you stand in every constituency that makes up the Euro seat, and if you stand in one constituency in the Euro seat you must put forward a list. Therefore, it links both ways: it links the first vote to the second vote; and links the second vote back to the first. That is the hardest test.
I have then made an alternative suggestion because I recognise that the Greens may not wish to contest all the first-past-the-post constituencies yet may want to be on the list. Therefore, I have provided that any party which is on the list must contest at least one. Conversely, if a party contests at least one, it must put forward a list.
In Amendments Nos. 6, 7 and 8, I have suggested that if one stands in one-quarter of the constituencies, one must put forward a list and if one puts forward a list, one must stand in one-quarter. I have then provided the same in relation to one-half and three-quarters. I have done that in a genuine attempt to find a way to prevent that ever happening in future. I look forward to hearing what the Government think about that.
If the Government are unable to accept any of those variations, I hope that between now and Third Reading they will turn their attention to finding a solution to that problem which goes somewhat beyond guarantees given by the three noble Lords whom I mentioned and myself. It is not good enough to introduce a new electoral system which is capable of being manipulated and not do something to prevent that manipulation. I beg to move.
Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Mackay, has said in introducing his amendments, they deal with the issue of potential collusion under the additional member scheme. In essence, what the noble Lord means by that is a situation where one group stands in the constituencies under the name of a party and then produces another apparent party to stand in the electoral regions when they are all part of the same party.
Everybody recognises that in theory that is possible. The noble Lord, Lord Mackay of Ardbrecknish, has rightly pointed out that the Liberal Democrats, the Labour Party, the Conservative Party and the Welsh Nationalist Party have all indicated that they would not do such a thing. Moreover, it presumes a lot of quite unparalleled cynicism and duplicity among any political party that did that, supported by indifference and naïvety on the part of the voters and of the media.
I submit that the noble Lord's approach throughout this debate and the earlier debate on this issue has been decidedly alarmist. He grossly exaggerates the likelihood of those hypothetical scenarios becoming a reality. No electoral system is without its potential for manipulation, not even first-past-the-post. I remind the noble Lord that it has long been common practice in local government elections in parts of Wales for members of political parties to stand for the council as

691
independents, even though they are nothing of the kind. They do so because they know full well that if they stood under their party banner they would not have a hope of being elected. Nothing in the law prevents such deception. It is left to the good sense of the electorate to figure out who is really who, and they have proved able to do so.
The options offered to us by the noble Lord are not new. They are variations on an earlier proposal which has already been considered at length by Ministers in the departments responsible for organising party list elections.
All five options impose restrictions on and requirements from political parties which wish to participate in the elections for the national assembly for Wales. All the options would require a party wanting to put forward a party list for an electoral region to mount at least some degree of challenge in the constituencies within that region. All the options would oblige a party which was contesting a certain number of constituencies within an electoral region also to put forward a party list in that region. Those impositions—it is the price the noble Lord says we have to pay for the theoretical possibility he identifies—are fundamentally undemocratic and imperiously draconian.
In a democracy, is it proper for the state to exercise such authority over where a political party mounts its electoral campaigns and targets its resources? I do not think so. The parties which would suffer most from the provisions, whichever of the five options is adopted, are the smaller parties which do not have the resources or the electoral appeal to engage in many contests or to mount campaigns over large areas. For tactical or economic reasons they would want to concentrate their activities on a small area or in a limited number of contests. Concentration of resources, to my mind, is a perfectly legitimate electoral strategy. The Greens, for example, contested only four out of 40 constituencies in the 1997 general election in Wales. I imagine that parties like theirs will be focusing on the electoral regions for the assembly elections, quite legitimately. It would be wrong if we were to oblige parties to engage in what were "token" contests in some areas simply to allow them to pursue their real intent in another.
I do not exaggerate when I refer to "token" contests. These provisions would have the effect of requiring candidatures to be mounted in a specified number of constituencies simply as a qualifying condition for submitting a party list. The other element of the various couplets—they all come in twos—obliges parties which ran candidates in a specified number of constituencies in a region to put forward a party list for that region, whether or not they wanted to. Why should those token contests be inflicted on the electorate? Why should a party have to stand in an electoral region when all it wished to do was to stand in a specified number of constituencies? What intrinsic democratic purpose would this extraordinarily directive election serve?
We would have constituency candidatures which were no more than qualification criteria for party lists; and party lists which were no more than penalties imposed for exceeding the approved threshold for the
692
number of constituency candidates in a region. In my view, this scenario is far worse than the ones described by the noble Lord in moving the amendment. The effect of any of these amendments would be to set up a system which placed a virtual obligation on parties to run bogus candidatures in several areas. That would be a cynical disregard of the electoral process and a gross deception of the electorate.
All the major political parties have given solemn undertakings in this House and in another place not to indulge in blatant manipulation of electoral machinery. I do not believe that we shall see the nefarious activities envisaged by the noble Lord. I have more faith in the good sense of the electorate and the political parties. I am afraid that he does not appear to share that good faith, even in respect of his own party. Whatever may happen, I believe strongly that the so-called solutions put forward by the noble Lord are more undemocratic and duplicitous than any of the unlikely circumstances that he described today.
4.30 p.m.
Lord Onslow of Woking: My Lords, before the noble and learned Lord sits down, perhaps I may say this. He will be familiar with a law which states that if something can happen, sooner or later it will. By his own admission, under this legislation as we have it now, it would be perfectly possible for what my noble friend has suggested to occur. It has to happen only once to invalidate the whole system. We have the opportunity now to make sure that it cannot happen. Much faith though I have in all those who have given solemn undertakings that their party would never do any such thing, I remember being in the House of Commons when a Labour Home Secretary felt obliged, to lay an order amending the constituency boundaries as the law provided, and to whip his party to vote against it. I do not suppose the noble and learned Lord would accuse me of being naïve if I said that that sort of thing has happened once and it can happen again. I support strongly what my noble friend said.
Lord Falconer of Thoroton: My Lords, I have accepted, as the noble Lord pointed out, that it could happen. But the point I am making is that the solution proposed—as any solution proposed would have to be—is much worse than the consequences the noble Lord proposes. What the noble Lord proposes, is that parties be compelled to place people in constituencies and to place lists in electoral regions simply as the price to be paid for standing where they wish to stand. That is not fair and it is not democratic; and it is unnecessary, having regard to the level of the risk of untoward events occurring. That is at the heart of our objection to the amendment proposed by the noble Lord. In those circumstances I invite the noble Lord to withdraw his amendment.
Before I conclude, I say this in relation to four out of his five couplets. Although this is a drafting point, they are mutually contradictory in the way they operate. For example, the first one says that one can put forward a list in an electoral region provided that one has somebody standing in each assembly constituency. Then

693
new Section (1A) states that one is obliged to put forward a list in the electoral region where one has one or more candidates standing in a constituency. On the one hand it is said that it is optional; and, on the other, that it is compulsory. I fully understand what the noble Lord is getting at with his amendments, but as they are drafted at the moment they appear to be contradictory.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble and learned Lord for the last point. I shall study it with interest and see what I can do to improve the amendments—or one of them. I have listened to the noble and learned Lord. My noble friend Lord Onslow of Woking made a telling point in his intervention. If I had stood before your Lordships all those years ago and said that it was possible that a government might obey the law, lay the orders regarding electoral boundaries before the House, and then proceed to vote them down, I am sure that I would have received much the same answer from the government minister of the day. He would have told me that I was grossly exaggerating, that people would not do that, and so on. But, lo and behold, in the fullness of time they did so.
It is exactly the same with this provision. I do not believe that I am grossly exaggerating. As I mentioned to your Lordships, the original idea is contained in an article by Dr. Dyer, who I believe is a lecturer in politics at Aberdeen University. It was taken up by a Member of the other place, Mr. Ian Davidson, the Member for one of the Glasgow seats, who advocated it in exactly the same way that I illustrated for the Scottish parliament. I shall bring forward similar amendments in relation to Scotland, but the position is exactly the same in Wales. The potential is there.
Lord Elis-Thomas: My Lords, will the noble Lord give way? I am grateful. Will he indicate which parties or candidates in Wales have indicated publicly that they might adopt this course; or which political commentator who is read seriously in Wales has suggested that this might happen?
Lord Mackay of Ardbrecknish: My Lords, when I introduced these amendments, I indicated that three noble Lords, including the noble Lord, Lord Elis-Thomas, on behalf of their parties gave assurances that it would not happen; and I gave assurances on behalf of mine. However, as I pointed out, those assurances do not bind our parties for all time. I regret to say that the example given by my noble friend Lord Onslow of Woking is a reminder to us that we should make legislation as tight as we can achieve against any eventualities. Therefore while I fully accept that nobody suggests that it would be done in Wales at the moment, the fact of the matter is that at some future time some party could decide to do that. The electorate would quite understand, especially the electorate which supported the party in question. The electorate would be perfectly capable, in the words of the noble and learned Lord, of having the good sense to work out who is who, and to see the advantage that it would bring to their own party. I do not think that many of the supporters of that party would disapprove if in extreme circumstances it stood between them and losing the election.
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Some of the arguments of the noble and learned Lord about how unfair and undemocratic it was for smaller parties could equally be applied to deposits and to the need to get above certain thresholds in order to get the deposit back. It seems to me that one could argue in exactly the same way that having deposits before one stands for election is anti-democratic and unfair on small parties which may not be able to achieve the 2.5 per cent. threshold now laid down.
I do not think that it is a terribly good argument for the Government to say that any of my proposals are unfair. As I said originally, I accept that my hardest proposal, which demands that every seat be contested, would be unfair. However, my softest proposal—if I may call it that—would simply stipulate that a party would have to contest one seat. If it contested one or more, then it would have to submit a list. I do not think that that is a huge obligation for even a very small party if it is serious about standing and if it is likely actually to gain support.
I fully accept that my amendments may not be the best way forward, but I should have liked to hear some sort of commitment from the Government as regards finding a way, by using all the skills at their disposal—for example, draftsmen and so on—to prevent this eventuality happening. However, it seems that I am not going to get that. The five amendments that we are discussing are mutually exclusive. I should like to have the opportunity to read what the noble and learned Lord said to see whether I can come forward with another suggestion which might help to alleviate what I believe could be a serious problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 to 9 not moved.]
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 10:
Page 3, line 25, at end insert (", who shall publish the list at the earliest opportunity").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 11 and 12. The Minister will recall an amendment I moved in Committee which proposed that the regional returning officer should publish the party list of candidates as soon as he received it, or as soon as possible thereafter. We suggested that for the simple reason that we believe electors are entitled to know who is on the party list. I went further and asked for a display of the lists at polling stations. However, that is a slightly separate issue.
On the first point, the noble Lord, Lord Williams of Mostyn, thought my idea a very sensible one, and said:
"As regards publishing the lists as soon as possible after their having been submitted, I am bound to say that, in principle, that seems a thoroughly sensible idea".—[Official Report, 11/5/98; col. 883.]
The noble Lord went on to talk about an elections procedure order which will be subject to the affirmative resolution procedure. Do we have to wait for that order before the principle of publication is accepted? Should the principle of publication not be written into the Bill as we suggested?
Coupled with this amendment are Amendments Nos. 11 and 12 which propose that the order of names on the list shall be determined by the party and that the list shall appear on the ballot paper. That is consistent with our amendments in favour of the open list system. I thought that I heard the noble and learned Lord refer to the fact that those points have already been conceded; namely, publication of the lists, plus the order of the lists, and their use on ballot papers. We also suggest in our amendment that the list should be rotated, as it were, in order to try to ensure that candidates receive equal exposure to the electors. I am told that that system is in use abroad.
The thrust of our amendments is that electors must know—surely they have a right to know—who they are voting for as well as the party; in other words, who is to represent the party. Again, although I should like some clarification, I understand that the principles of what we are talking about have been agreed for the European Parliamentary Elections Bill. I beg to move.
4.45 p.m.
Lord Falconer of Thoroton: My Lords, I shall speak to Amendments Nos. 10, 11 and 12. Amendment No. 10 raises an issue which we touched upon in Committee. It was stated then by the Government that we fully supported the principle of making available to voters information about the composition of party lists and that we would look at the means of achieving that intention.
At parliamentary elections, the acting returning officer is required to publish a statement of the persons nominated once the time for making objections to nominations has expired. We shall need to make similar provision for the publication of a statement of persons nominated for the assembly elections. In the case of party lists, we will propose that that statement should include the names of all candidates on the list. However, that is a detail about electoral procedure.
As already mentioned, we are currently in the process of drawing up an assembly elections procedure order which will lay down the rules and regulations for the conduct of the assembly elections. The order is the appropriate vehicle for making provision of this type. Further, the order will be subject to the affirmative resolution procedure and your Lordships will have the opportunity to examine the detail when the order is presented to Parliament—which, on current plans, will be before the end of this year.
We cannot support Amendments Nos. 11 and 12 which call for the inclusion of the names of list candidates on ballot papers. Party lists submitted for assembly electoral regions may include up to 12 names. A ballot paper which included the names of every party list candidate would be unmanageably large and have a mass of confusing detail. With that amount of information on the ballot paper, many electors could well be deceived into thinking that they could in fact vote for an individual candidate on the list. Indeed, I mentioned that aspect during the course of our debate regarding the choice between the open and the closed list.
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Mention was made in Committee that we are considering the means by which the composition of party lists can be publicised and made widely available. I explained then that one of our favoured options would be to make it a requirement to have notices placed in all polling stations displaying the names of party list candidates in that region. We are still considering with elections administrators the practicalities of the various options. Some of the possible complications were alluded to in Committee—notably, the need to make provision to give equal treatment to all other candidates and the need to ensure that there was sufficient wall space in polling stations to accommodate all those notices. I am confident that any difficulties can be overcome. I fully anticipate that the elections procedure order will include adequate provision for publicising the names of all party list candidates.
Finally, I do not believe that the second element of Amendment No. 12 would be at all helpful—not to voters, and certainly not to the regional returning officers. The proposal is that there should be, as it were, a revolving list; in other words, you put the list of regional candidates on each ballot paper but you change the order for various chunks of the ballot papers. Noble Lords need only imagine the administrative exercise and expense of ensuring that a certain proportion of ballot papers had a party list arranged in different ways. How would you cope with several party lists with different numbers of candidates? The prospect of arranging every ballot paper to meet the full requirements of this amendment in respect of every party list would be a nightmare. Indeed, for what purpose? Many of the ballot papers will never be used by voters. Turnouts do not reach 100 per cent. even in the best of years.
I hope that the assurances about provision being made in the elections procedure order for publicising party lists will persuade the noble Lord to withdraw the amendment.
Lord Roberts of Conwy: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his remarks. I am glad to hear that all the candidates' names on the list will be published and that further progress will be made when we have the electoral procedure order which we can discuss in the course of the affirmative procedure. At the same time I was disappointed to hear that the names will not appear on the ballot paper and that individual electors will not be able to vote for their chosen candidate. It seems to me a great pity that that will not be allowed because there is a tradition in this country among the electorate that they like to know for whom they are voting. I am surprised that the noble and learned Lord the Solicitor-General thinks there would be a difficulty with what we are suggesting. The system that we recommend is certainly practised on the Continent and people do not seem to have undue difficulties with the system there. Therefore it is with some regret, and yet with some relief at the anticipated contents of the electoral procedure order, that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 and 12 not moved.]
Clause 6 [Calculation of electoral region figures]:
[Amendment No. 13 not moved.]
Clause 7 [Return of electoral region members]:
[Amendments Nos. 14 and 15 not moved.]
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 16:
After Clause 7, insert the following new clause—

SELECTION OF CANDIDATES FOR ASSEMBLY
(" .—(1) The Sex Discrimination Act 1975 shall be amended as follows.
(2) After section 49 of the 1975 Act there shall be inserted—
"Candidatures for National Assembly for Wales.
49A. Nothing in Parts II to IV shall render unlawful any act done by or on behalf of a registered political party within the meaning of the Government of Wales Act 1998 if it is an act done for the purpose of, or in connection with—

(a) selecting female candidates only, or male candidates only, for election to the National Assembly for Wales ("the Assembly"), or

(b) taking any steps preliminary to, or in connection with, such selection which either favour or subject to a detriment either female or male candidates,

provided that in the opinion of the party concerned the act in question is in the circumstances necessary to attempt to secure an equal number of members of the sex favoured as there are of the other sex as candidates of that party for election to the Assembly.".
The noble Lord said: My Lords, when we debated the issues of sexual discrimination and the selection of candidates for the national assembly in Committee we did not have the benefit of Clause 120. That should set the whole context of this debate for we now have a Bill which commits the assembly to make appropriate arrangements to have due regard to,
"equality of opportunity for all people"
in the exercise of its functions, and to make a report upon that. I begin with the following simple question. How can an assembly which has equality of opportunity for all people as one of its legal duties consist of an imbalanced gender, cultural and ethnic mix which does not reflect the population of the country for which it is a national assembly?
When he responded, in his usual sharp, intelligent and all encompassing way—there are more adjectives, should they be required—to our debate in Committee, my noble and learned friend the Solicitor-General said that the Government's view was that the initiative on this matter,
"lies with the political parties themselves to improve the balance of women and men in their selection procedures".—[Official Report, 11/5/98; col. 914.]
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I am therefore pleased to congratulate the Liberal Democrats on selecting Kirsty Williams, an intelligent, lively and sharp young member of the national advisory group, as their candidate in a constituency which they hold in the House of Commons.
Lord Hooson: My Lords, does the noble Lord agree that she won the nomination in the face of open competition? There was no positive discrimination in her favour.
Lord Elis-Thomas: My Lords, I am not aware that the Liberal Democrats adopted any procedures. I am certain that she would benefit from whatever procedures might be put in place because she is a talented candidate. I wish her well. I say that on an entirely non-partisan basis. I also wish to announce the successful nomination of Elin Jones—the previous mayor of Aberystwyth—for the Party of Wales, Plaid Cymru, in a constituency held by the party in the House of Commons, that of Ceredigion. Therefore, we are doing our bit.
However, I now invite my noble friend and companion in the Conwy Valley, the noble Lord, Lord Roberts of Conwy, to list the gender balance of selected Conservative members for the National Assembly for Wales. I also invite him to list, by gender balance, the members of the Conservative Party selected for the Welsh constituency of the European Parliament. I had the great privilege of meeting one of them last night. I congratulated him in person. He is Mr. Jonathan Evans, a good friend. He is to the left of the Conservative Party, and perhaps not a Eurosceptic. Therefore he may be a positive addition under the existing electoral system to the European Parliament. I wish him well. Apparently he is on the top of the list, to be followed by Mr. Chris Butler. I understand he is second on the list. I greatly admire that gentleman. He was an active researcher for the Conservative Party in Wales. However, I believe him to be of the same gender, and indeed of the same party tendency, as Mr. Jonathan Evans. I could go on, but it is not my place in this House to embarrass the Conservative Party.
Lord Roberts of Conwy: My Lords, perhaps I can put the noble Lord out of his misery immediately by saying that of the 19 candidates who have been nominated to contest the assembly, four are Conservative women.
Lord Elis-Thomas: My Lords, I did not do too well at mathematics because there was no national curriculum in the days when I attended Llanrwst grammar school. However, four out of 19 is hardly a gender balance. Therefore I suggest that the noble Lord should return to the Conwy Valley and start to count sheep again to see how that works out. It seems to me that there is a gross failure on the part of the Conservative Party to fulfil the suggestions of my noble and learned friend the Solicitor-General. The amendment I move is not proposed in the interests of the Labour Party, the Party of Wales or of the Liberal

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Democrats, but in the interests of the Conservative Party to ensure that it is now able to attempt to obtain some form of equality in the selection procedures.
My noble and learned friend the Solicitor-General may not be able to reply immediately to my next question. If he cannot do so, I hope that he will write to me on the subject before we reach Third Reading as this is an issue we may wish to return to for a further progress report on the success or otherwise of the Conservative Party in achieving equality of opportunity in these matters. I give notice of that. I hope my noble and learned friend will be able to indicate what stage we have reached in terms of the consultation undertaken by the Equal Opportunities Commission earlier this year on the relevance of sex discrimination legislation at both UK and European level to the selection of candidates. I believe that both in Scotland and in Wales the Labour Party has taken measures along the lines of positive discrimination which seem to be working. Certainly the Party of Wales intends to adopt not the same procedure but another one in relation to ensuring a balance of representation through the topping up of the regional list system, should that be required, following the first-past-the-posts elections. I say all this because it was put to us fairly clearly that the Government took the view that this was a matter for political parties. I suggest that some political parties at least have failed in that respect.
A related issue which also concerns me deeply is linked to the question of equality of opportunity; namely, ethnic balance between various communities within Wales as reflected within the assembly. I believe we must address not only the issue of gender balance but also that of the ethnic balance in terms of equality of opportunity. This is a serious matter which we must address, although it is not immediately relevant to this amendment. I hope that all parties in Wales will take into account the need to ensure that all diverse communities within the nation have representation and feel that the national assembly belongs to all of us. Otherwise, we shall be failing in our duty of inclusivity in that regard. For all those reasons and others, I beg to move the amendment.
5 p.m.
Viscount St. Davids: My Lords, I have considerable sympathy for the amendment. I hope that the Government will share that sympathy. If not, much of their rhetoric goes for nothing. I remind the Government that they have used the word "inclusive" over and over again in their proposals. If our national assembly is to be truly inclusive, it must also be gender inclusive. To achieve that may well require the use of artificial mechanisms subject to legal challenge. Until such time as the position of women in Welsh politics is greatly improved, we must be able to use such mechanisms without the fear of intervention by the courts.
Lord Roberts of Conwy: My Lords, if I am not wildly mistaken, the noble Lord, Lord Elis-Thomas, is being altruistic. Surely he is trying to be helpful to the Labour Party in Wales which got itself into an unholy
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mess with its so-called twinning arrangements. The noble and learned Lord the Lord Chancellor has, according to the press, told the Labour Party in Wales that its scheme is illegal. It is indeed contrary to the Sex Discrimination Act 1975. It may contravene the European Union equal treatment directive. That is my understanding of the position. We on these Benches are not into this business at all. We will take lectures from prominent members of Plaid Cymru when that party is led by a woman, as our party was so nobly led for 18 years by the noble Baroness, Lady Thatcher.
Is it right to drive a coach and horses through the 1975 Act simply to try to legitimise what is after all a curious scheme devised by the Labour Party in Wales to favour Labour women candidates for the assembly in Wales? I am not aware that the scheme is required for any other political party elsewhere. As I say, we are not into the business of selecting women simply because they are women. I am proud to say that those women selected as Conservative candidates for the assembly have been selected on merit.
Lord Falconer of Thoroton: My Lords, we considered this very same amendment in Committee when I made clear the Government's view that any change to the Sex Discrimination Act 1975 could be open to challenge as being in contravention of European employment law and of the equal treatment directive in particular. Unfortunately, Clause 120 of the Bill changes the position, whatever it may be, in relation to European law.
That said, I also wish to make it clear that the Government attach very great importance to seeing more participation by women in the political processes of this country. For far too long there have been far too few women in our elected chambers. The assembly will be a new start for Wales and we hope that women will be to the fore in helping to make sure that the new start is a successful one.
The amendment proposes that we should amend the Sex Discrimination Act to remove the selection procedures for assembly candidates from its scope. For the reasons already mentioned, we cannot accept it. Our view remains that the initiative lies with the political parties themselves. It would be possible for parties to achieve a real impact simply by introducing elements of what is now widely accepted as best practice in terms of equal opportunities.
The Equal Opportunities Commission has offered to advise political parties on how they can put equal opportunities into practice in their activities and candidate selection procedures. The Government urge all parties to take up that generous offer. Among the suggestions put forward are the need for parties to make a strong statement at a national level of their commitment to encouraging women to come forward as candidates for selection. Once more I have no hesitation in giving that commitment on behalf of the Labour Party: more training for women who are interested in putting themselves forward as candidates; training for local selection committees; promotional literature to

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encourage women party members to stand for selection; and giving applicants and selectors long notice of meetings to allow for domestic arrangements.
The White Paper made clear that we are committed to equal opportunities for all—a commitment which extends to women and men, members of the ethnic minority communities, the disabled and others. We urge all the political parties to have regard to the principle of equal opportunities in drawing up their procedures for the selection of candidates for the assembly elections. Against that background, I urge the noble Lord to withdraw the amendment.
Lord Elis-Thomas: My Lords, I am grateful to the Minister for his response and for his clear statement on the issue of discrimination generally and the need for inclusivity. On that basis, I shall withdraw the amendment. However, I may well return to the issue at Third Reading so that we may keep up with the progress of the Conservative Party in achieving equality of opportunity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Constituency seats]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 17:
Page 6, line 6, after ("section") insert ("and section 9").
The noble and learned Lord said: My Lords, I had not proposed to move this amendment because it is incorrect. I hope that the noble Lord, Lord Williams, got the message that it was incorrect and that he was not to waste time puzzling out what it meant. It goes with Amendment No. 19 and is another attempt, in the face of the obduracy of the noble and learned Lord the Solicitor-General, to economise on statutory language.
An amendment that I shall table at Third Reading will relate to subsection (9) of Clause 8, so that the subsection would read: "References in this section and in section 9 to the presiding officer include references, etc.". That would permit subsection (8) of Clause 9 to be removed. I mention the real intention in the hope that the amendment will commend itself to the Government pending Third Reading. In the meantime, I shall not move this amendment.
The Deputy Speaker (Lord Strabolgi): My Lords, I am afraid the noble and learned Lord must move the amendment if he wants it to be considered by the House. I shall therefore put it to the House.
Lord Simon of Glaisdale: My Lords, I hope that the noble and learned Lord rising to reply has made more sense of the amendment than I have.
Lord Falconer of Thoroton: My Lords, the point is plainly a good one. There is no point in including the same reference twice. The matter can be dealt with by including in Clause 8 a reference to Clause 9. If the noble and learned Lord will withdraw his amendment, we will bring forward an appropriate amendment at Third Reading.
Lord Mackay of Ardbrecknish: My Lords, before the noble and learned Lord sits down, I thought the
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noble and learned Lord, Lord Simon of Glaisdale, was being even more clever than normal; I could not understand his first amendment. However, my attention has now been drawn to the wording of the two subsections. We all exercise the function that we excise "for the time being", unless we are immortal. It seems to me to be the most amazing piece of legal mumbo-jumbo and perhaps when we return to the matter the noble and learned Lord will try to explain why we need to say "for the time being" when we all hold our various posts for the time being.
Lord Simon of Glaisdale: My Lords, I am absolutely delighted by the response of the noble and learned Lord. It makes me feel rather ashamed that I referred to his "obduracy". I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 18:
After Clause 8, insert the following new clause—

SEAT OF MEMBER CEASING TO BE MEMBER OF PARTY TO BE VACANT
(" . If an Assembly member returned for an Assembly electoral region as a candidate for a registered political party ceases to be a member of that party, his seat shall be regarded as vacant for the purposes of this Act.").
The noble Lord said: My Lords, there is no question but that the assembly member who secures his seat through the PR system proposed in the Bill obtains it by virtue of his membership of his party. Unlike the constituency assembly member, the electoral region member owes his election above all else to membership of his party. The vote is cast for that party.
The electoral region member therefore is clearly a party representative and his constituency representation is secondary to that; indeed, he is one of four representing his electoral region. It is arguable therefore that, if the assembly member for an electoral region ceases to be a member of his party—the party in whose name he was elected—then he ceases to be a member of the assembly and the seat becomes vacant.
Cessation of party membership could easily arise in a number of ways. First, there is always the possibility of expulsion for wrongdoing; secondly, there is the possibility that the member may simply change his politics, cross the floor of the assembly and join another party, and so forth. But such events could have serious repercussions within the assembly where the composition of the committees is closely allied to the balance of the parties. It is for that reason that we tabled Amendment No. 18. I beg to move.
Lord Falconer of Thoroton: My Lords, Amendment No. 18 proposes that if a person elected on a regional list changes party, leaves the party or is expelled by his party, then he must cease to be a member of the assembly. That is an extremely centralising power which is expected to be taken into the Bill.
As the noble Lord, Lord Roberts, knows, there is a long tradition in British politics of tolerating Members who cross the Floor. It will not be in the interest of anyone if we seek to expel an elected party list member simply for moving from one allegiance to another. If the

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noble Lord, Lord Roberts of Conwy, strongly believes in the principle expounded by the amendment, I wonder why he has not found it equally valid for other members of the assembly—independents elected for an electoral region and all those elected from the assembly constituencies. The British political tradition is one that extols the virtues and advantages of the representative rather than the delegate and we should be loath to depart from that principle.
Lord Mackay of Ardbrecknish: My Lords, I have been following the argument of the noble and learned Lord with some care. Is it not inconsistent with the argument he was putting forward earlier this afternoon in relation to the open list, when he indicated that members of the electorate would not be voting for an individual on the list; they would only vote for the party? We are now being told that they are voting for an individual. The noble and learned Lord must make up his mind.
Lord Falconer of Thoroton: My Lords, there is no inconsistency. The electorate is given the choice to elect specific people, whether by voting for a specific party in the regional list or for a constituency member in the constituencies. Once those people are elected then, in accordance with British political tradition, they are entitled to stay until the end of their electoral mandate. We on this side of the House should be loath to depart from that principle in respect of membership of the assembly.
In voting for a party list, voters express a degree of approval of the candidates put forward on that list. That endorsement should hold good for any member for the duration of the term for which he has been elected. That is a principle which has long been applied under the British electoral system and should be extended to all members of the assembly. In those circumstances, I respectfully urge the noble Lord to withdraw his amendment.
5.15 p.m.
Lord Roberts of Conwy: My Lords, I disagree strongly with some of the remarks of the noble and learned Lord the Solicitor-General. He has not reflected the true situation and the difference that clearly exists between the constituency member and the electoral region member. The first is elected by virtue of standing in his own name; he may have a party label attached to him, but his name is clearly there. If he is elected in the traditional way, on the first-past-the-post basis, as Members of the other Chamber are elected, no one would deny that the votes given to him have a personal attribution.
The noble and learned Lord conceded that, when it came to the electoral regional representative—in Wales it would be one of four in each region and there are five regions altogether—he said that there would be a degree of personal association with his success in the election. But the election is primarily won by votes cast for his party. It is known that the name of the winning candidate is on the list; nevertheless, the order of
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preference is not clear to the electors and the votes are cast in that additional member system for the party, rather than for the individual.
It seems to me to be quite logical therefore that, if there is a change of party on the part of an electoral region candidate who succeeds, in view of the fact that he is there by virtue of his membership of the party and the success of the party in the election, and as such a change on his part affects the workings of the assembly and its committees, a vacancy will in effect have occurred and there should be another election. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Electoral region seats]:
[Amendment No. 19 not moved.]
Clause 11 [Power to make provision about elections etc.]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 20:
Page 7, line 26, at end insert—
("( ) No order made under subsection (1)(a) shall provide for the limitation of the election expenses of registered political parties where such expenses were not incurred in relation to a particular Assembly constituency or Assembly electoral region.").
The noble Lord said: My Lords, the Secretary of State's order-making powers under Clause 11 can provide for the limitation of election expenses of candidates and registered political parties. Clause 11(2)(c) covers that situation and, indeed, criminal offences can be created in connection with that specific limitation.
We believe that that is right. But, as our amendment suggests, we do not believe that such limitation by order should extend beyond the individual constituencies or electoral regions to the general activities of parties in Wales and elsewhere. If there is to be any such curtailment of the general activities of parties beyond the individual constituencies or electoral regions, the Bill is certainly not the place for such limitations to be imposed. I beg to move.
Lord Falconer of Thoroton: My Lords, Amendment No. 20 proposes that whereas limits may be set for election expenses relating to assembly constituencies and the electoral regions, no limit should apply on an all-Wales basis.
The introduction of the additional member system for elections to the assembly will bring with it a new form of political campaigning. Alongside the familiar constituency contests focusing on individual candidates we shall have the contests in the electoral regions. The latter will be conducted on the basis of party lists and, inevitably, much of the campaigning in the electoral region contests will be party-focused. Election literature will exhort voters to vote for the Labour Party list, the Conservative Party list, the Liberal Democrats, Plaid Cymru, and so on.
In those circumstances the Government believe that some form of limit On the expenses of political parties is essential and appropriate. We need to ensure that all party list candidates are treated fairly and equally. It is only by imposing a limit on the expenses of the political parties that we can achieve that goal.

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As I have said, we believe that it is a matter of intellectual consistency and electoral propriety to impose expenses' limits on the parties in the same way that there are limitations on the election expenses of individual constituency candidates. However, I stress that no decisions have yet been taken on the mechanics of applying limits on party expenditure above the constituency level. We are awaiting the report and recommendations of the committee chaired by the noble and learned Lord, Lord Neill. What is clear is that some form of limit is both necessary and appropriate. Indeed, the tenor of Amendment No. 20 shows that the noble Lord opposite shares that view.
The order providing for the limitation of election expenses would be subject to the affirmative resolution procedure in both Houses of Parliament and will present the opportunity for your Lordships to examine the detail of the proposals. When we have absorbed the findings of the Neill Committee report, we shall come forward with our proposals and, again, both Houses will have ample opportunity for scrutiny and comment. In view of my explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for that reply. Clearly, we are somewhat in advance of other things that are to happen, including future proposals after consultation and advice from the noble and learned Lord, Lord Neill. I reiterate my original point. We hope that the limitation on expenses can be confined to the electoral constituency or electoral region and will not go wider than that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Disqualification from being Assembly member]:
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn) moved Amendment No. 21:
Page 8, line 15, after ("Wales") insert ("or the office of Welsh Administration Ombudsman").
The noble Lord said: My Lords, originally grouped with Amendment No. 21 were Amendments Nos. 22, 23, 70 and 73. I understand it is now desired that Amendment No. 23 should be decoupled. It is probably convenient therefore to your Lordships if I deal with Amendment No. 21, and then the noble Lord, Lord Crickhowell, deals with his amendments because they are positive amendments in the sense that they are assertive amendments. Then there is the variant which has been put forward by the Liberal Democrats and is slightly different again. I understand that the Liberal Democrats wanted the decoupling which I have indicated.
I shall speak briefly to Amendment No. 21. This is to make good the notice I gave at the Committee stage that if your Lordships agreed to the amendments establishing the office of Welsh administration ombudsman, which were agreed to, we should have to bring back an amendment at Report to disqualify the holder of that office from membership of the assembly, just as we have disqualified the Auditor-General for Wales, whose
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office is also created by the Bill. This amendment is designed to produce that effect only. Accordingly, I beg to move.
On Question, amendment agreed to.
Lord Crickhowell Lord Crickhowell moved Amendment No. 22:
Page 8, line 20, at end insert (", or

(e) he is a Minister of the Crown.").

The noble Lord said: My Lords, I rise to move Amendment No. 22, which would prevent a Minister of the Crown also being a member of the assembly. I intend to speak to my amendment, Amendment No. 70, which would prevent any Minister of the United Kingdom Government being an assembly first secretary or an assembly secretary; and to the amendment of my noble friend Lord Roberts, Amendment No. 73, which would have the same effect and would prevent any Minister of the Crown being a member of the executive committee.
When, earlier during the Committee stage, I referred to the fact that the Secretary of State for Wales is apparently determined to serve both as Secretary of State in the United Kingdom Government and first secretary in the Welsh assembly the noble Lord, Lord Elis-Thomas, accused me of having an obsession on the subject. I certainly believe that the proposal is extraordinary, improper, and should not be permitted, which is why I shall ask the House to accept my amendment and shall press the issue to a vote.
There are three powerful reasons for objecting to the idea that Ministers of the United Kingdom Government can also serve as members of the executive of the Welsh assembly. The first is political, the second practical and the third constitutional. I shall deal with them in that order.
In political terms I regard the proposal as offensive and insulting to the people of Wales. Having promised Wales an assembly and independent management of its domestic affairs, it now transpires that the Government are not prepared to let go, but instead intend to put nanny in the nursery to make sure that the children do not do anything naughty. There has been strong support across party lines for the proposition that, following the yes vote in the referendum, the verdict should be accepted and that the assembly should be made strong and effective. I find it hard to believe that those who voted in the belief that the Bill represented a fresh start could ever have imagined that Mr. Davies would be sent from London to ensure that New Labour rules were applied as ruthlessly in Cardiff as they are at Westminster.
If press reports are accurate, there is to be some kind of electoral process to decide who is to lead the Labour Party in Cardiff Bay. Far be it from me to forecast the results of such an election, but as an interested observer, I would have guessed that if Mr. Ron Davies had announced his intention to stand down as Secretary of State and put his name forward for election he would have stood a pretty good chance against the likes of Mr. Rhodri Morgan and Mr. Russell Goodway. But whatever the result, it would have been primarily because of the opinions of party members about the

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candidates. If, on the other hand, Mr. Davies goes down to Cardiff as a member of the Cabinet, it is inconceivable that the full weight of Mr. Blair's powerful machine will not be put behind him, that the spin doctors will not spin with feverish energy, and that there will not be hints of threats and sweeteners. All this will happen because it would be a humiliation for the whole Government if Mr. Davies, as a member of the Cabinet, were to be defeated.
Assuming that with this degree of assistance Mr. Davies wins, and with the majority party behind him he becomes first secretary, he will be obliged to take every possible step needed to ensure that the new executive toes the Cabinet line. He will hold office not as the representative of the Welsh people but as the minion, the servile agent, of his Cabinet colleagues and his master's voice in Cardiff. Incidentally, there is nothing in the Bill to prevent the other Welsh Office Ministers (with nothing left to do at Westminster) joining the Secretary of State in Cardiff—and why not the Welsh Whip and a PPS or two as well, just to make sure that control is absolute?
The assumption up to now during our debates has been that the Secretary of State would listen to the assembly and carry back its views to Westminster; and that he would explain and justify government policy to the assembly, while leaving it free to administer Welsh affairs within the constraints imposed by the law and finance. Under the arrangement that we are now considering he would be bound to use all the instruments available to him to silence dissent because of the personal and political embarrassment that would be caused by policy decisions in conflict with those taken in Downing Street. We are told that it may only be for a transitional period when it will be useful to have the experience of a Cabinet Minister to guide the new assembly. I say to those who advance that argument: come off it! If any Secretary of State was to gain the leadership of the assembly, staffed by the civil servants at present in the Welsh Office, there would be no shortage of experience; and once again the suggestion that nanny is needed to hold hands is insulting to those like the noble Lord, Lord Elis-Thomas, who will be seeking election to the assembly.
I was puzzled at first as to why in Committee the Government received encouragement from the noble Lord, Lord Elis-Thomas, on this proposition; but perhaps we have been too easily seduced by the moderation and good sense with which in this, the autumnal period of his public life, he so often beguiles the House. I still remember the fiery young radical I first knew in another place who is still active politically and an adopted candidate of his party. My suspicion is that he knows full well that the proposal is insulting; that it will provoke fury when its implications are fully understood in Wales; and that the noble Lord will then exploit the political opportunity to the full.
If there are strong political grounds for objecting to what is proposed, there are also practical objections. Already concerns are being expressed in Wales about the time that members of the assembly will have, under the proposed arrangements, to carry out their varied
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tasks but, curiously, nobody seems to have inquired how the Secretary of State would be able to find the time to do both jobs effectively. Thursdays would be out for a start as far as concerns the assembly. Surely he will still attend Cabinet; and even if there are no Cabinet committees on Thursday afternoon and his presence is not required in another place, he could hardly be in Cardiff Bay before the early evening. Presumably, he will attend Cabinet committees on other days, and even in a situation where the Government have a large majority he will be required, on occasions, to carry out his parliamentary duties. The other day he and I were both on a train from Cardiff which was more than half an hour late—a not uncommon event—but even when the Great Western does better than that, each return journey from Cardiff Bay to Westminster will take five hours out of the time available for the leadership of the assembly. Wales is being offered a part-timer to run its affairs.
I turn now to the constitutional issues which are profoundly important. To be a member of two governments simultaneously is bound to create intolerable conflicts of interest. All those noble Lords who have been Ministers will have gone through the experience of having advanced an argument on behalf of their department that has not gained the support of colleagues, and then of having to defend the collective decision. How can an individual do that when a member simultaneously of administrations that may, for perfectly good reasons, come to diametrically opposed decisions?
On the one hand the Government at Westminster may take a decision that is justified in the interests of the United Kingdom as a whole—perhaps on regional or agricultural policy—which appears damaging to the particular interests of Wales. In Cabinet the Secretary of State does his best but loses the battle. On the other hand, down in Cardiff his colleagues resolve that the assembly should come out in vigorous opposition to what is proposed; but its leader has his hands tied behind his back; or—like a version of that splendid animal the push-me-pull-you—he has to express different thoughts through two mouths.
We are also about to pass a Bill that gives the Secretary of State important duties to perform in relation to the assembly. The Bill has not been debated, let alone justified by Ministers, on the basis that he is to perform a dual role. I note that there are more than two dozen clauses that impose responsibilities on the Secretary of State. I shall pick on only a few of them. Clause 31(1) states,
"The Secretary of State shall undertake with the Assembly such consultation about the government's legislative programme … as appears to him to be appropriate".
On my future journeys on the 125 to Cardiff I shall look forward to overhearing Mr. Davies consulting himself about the legislative programme. Clause 56(6) states,
"The Assembly First Secretary is accountable to the Assembly … for the exercise of functions by the executive committee".
That is all right. But he is also accountable to Parliament. Perhaps Members of Parliament are going to have greater opportunities than we had thought so far for questioning the Secretary of State about devolved responsibilities.
Clauses 83 to 88 are all concerned with the making of payments or loans to the assembly and accounting for them. The Official Report quotes me as using the words "good government" in this connection at Committee stage. I actually said "good governance" in the sense that those words are applied to business and financial institutions in the rules imposed by regulators and the Stock Exchange. Any company coming to the market with a prospectus that included potential conflicts of interest of the kind implicit in these clauses if the Secretary of State is also first secretary, would rightly be halted in its tracks. Even if in practice propriety is observed, it is not seen to be observed and therefore what is proposed is not acceptable.
Clause 108 gives the Secretary of State important duties if he considers actions proposed by the assembly incompatible with international obligations. There are other noble Lords much better qualified than I to comment about the legal proprieties of the Secretary of State giving directions to himself on these important matters, just as they may have views about his exercising Henry VIII powers to amend enactments contained in Clause 151. I simply say that it seems to me to be a thoroughly bad principle.
Let me make it absolutely clear that I have no objection at all to the fact that Mr. Ron Davies aspires to be leader of the assembly and to occupy the office in the splendid Pier Head Building from which he may look out over the new developments that I had some hand in creating around the Bay. Nor would I have the smallest objection if he decided instead that he wished to remain Secretary of State occupying what is perhaps the most beautiful office in Whitehall. I hope that I will not do him great harm if I say that I rather admire the skill and determination with which he has carried forward the devolution programme; and that he seems likely to be a better leader than others who have so far declared themselves. However, I believe very strongly that the political, practical and constitutional objections to him or to any other Minister performing both roles, are overwhelming, which is why I shall ask the House to support my amendment. I beg to move.
Lord Elis-Thomas: My Lords, as the noble Lord, Lord Crickhowell, kindly referred to me, I feel that I should respond, even as "an autumnal radical". I believe that that is the description that the noble Lord wants me to take. Of course, the phrase sounds even better in Welsh, radical hydrefol. The noble Lord cited three reasons why Mr. Ron Davies should not be a candidate for the leadership of the Labour Party in the national assembly and possibly its first secretary—those positions do not necessarily follow on from each other; it depends on the electorate—while still being Secretary of State. The reasons were political, practical and constitutional. I shall consider all three, encompassing them in the one word "political".
We are dealing with a unique political process in the history of the United Kingdom and of Wales. That is why those of us who have been concerned about devolutionary processes within this kingdom, the balance of forces between nationalities in this kingdom, and the economic and regional inequalities within this
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kingdom, are so keen on the development of this process. There is none more keen than Mr. Ron Davies, who, as the noble Lord said, has led the devolution and referendum campaign and his party's role in that campaign with integrity, clarity, tremendous determination and energy since he assumed the role of shadow Secretary of State for Wales.
That is why I personally and, indeed, politically see it as essential that if Mr. Ron Davies wishes to take a political decision to make a leap in the dark, as it were, or even a leap into Cardiff Bay, that should be his political decision. Indeed, it should be left to him and to the processes of party politics and the electorate to determine such matters. It is not for Parliament to start legislating on whether politicians should be allowed to stand for public office at different levels of government within this kingdom.
I feel this personally because—the noble Lord kindly advertised this fact—I have recently been selected as a candidate for the assembly. I am grateful to the noble Lord for his support in these matters. Clearly, Parliament could have legislated in this Bill to debar Peers from standing for election. What then would have happened to me or to any other noble Lord of any party in this House wishing to be a candidate for the Scottish parliament, for the Northern Ireland assembly, which has already been established, or for the national assembly for Wales? These are not matters for Parliament to decide in that way. They are matters on which politicians should make their own difficult judgments, their own decisions, with the support of their parties and the electorate.
As regards the alleged constitutional difficulties, as I said in Committee, the ability of politicians to move between different levels of government is part of normal life on mainland Europe. In the United Kingdom, we are suffering the legacy of a unitary state—of a union state operating as a unitary state rather than as a devolved state. Where it is operating as a devolved state, it should not be unusual that politicians might decide at certain stages of their careers to opt for different levels of government. It is not for Members of this House or of another place to debar politicians from so doing.
As regards the proposals in the amendment, what about the alternative? Let us imagine that there was a major crisis in the United Kingdom—indeed, that there was a crisis within the current hegemony of new Labour, a deep division inside the United Kingdom Labour Party. Let us imagine that the call went up from the United Kingdom Labour Party, "Send for Ron!". The first secretary of the national assembly for Wales might be summoned to Downing Street, if not to the Palace, to save the Union. That may sound rather fanciful to the noble Lord, Lord Crickhowell, but his amendment would debar that from happening. It would debar a person serving simultaneously as a Minister of the Crown of the United Kingdom Parliament and Government and within the national assembly. That applies particularly to the position of other Ministers. I see no objection to a Minister of the Crown who is serving as a Minister of State or as a Parliamentary Under-Secretary of State in a Whitehall department also being a member of the national assembly—and an active

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member of it. Surely, that again provides for the synergy across levels of government which is part of a quasi-federal structure. This House is trying to encourage dual membership of other parliaments, such as the European Parliament, and the improvement of links between parliaments.
I come now to the most fanciful point of all. I refer to the noble Lord's analysis of the internal affairs of the Labour Party. It is well known that I have a self-denying ordinance. I never comment in public on the internal affairs of the Labour Party. However, I find it absolutely amazing that the noble Lord should suggest that my right honourable friend in another place, Mr. Ron Davies, is somehow new Labour. I have engaged in political debate with Ron on these issues over many years. Mr. Ron Davies is certainly new Wales Labour but new Wales Labour is not the same as new Labour, Islington variety. Ron Davies represents a combination of the national aspirations of Wales and what used to be called socialism. He is committed to what I would describe as community socialism—if that makes both of us radicals, so be it—but that is not in any sense the same as new Labour. If Mr. Ron Davies has been successful in securing the support of Cabinet colleagues for his application for, and nomination and election to, the post of first secretary, good luck to him.
I want to see an effective leader of the national assembly, from any party. Obviously, as I have done throughout my political life, I stand by my colleague, the right honourable Dafydd Wigley to lead the Party of Wales in the assembly. He may well yet lead us to be a party in governance in one form or another in that assembly. These are matters for the electorate. I also want to see effective leadership of the Labour Party in Wales, and Mr. Ron Davies is the person to deliver that. I also want to see effective leadership of the Liberal Party in Wales. I should like to see Green and Independent members—and even some Conservatives—in order to reflect diversity in the national assembly.
However, it is entirely inappropriate for us in this House to take it upon ourselves to debar Mr. Ron Davies from taking that political risk for himself. I am surprised that that suggestion comes from a former Secretary of State for Wales who understands the politics of these issues. To suggest that I have ulterior motives and that I intend to denounce Mr. Ron Davies is to fail to understand the nature of the alliance that established the assembly. The national assembly was established by a consensus between the Labour Party of Wales or from Wales, the Liberal Party of Wales, and Plaid Cymru as the Party of Wales. It was endorsed by the electorate by a small majority. Our intention is to make it work—and if Ron is the man to lead us and to make it work, we shall support him, if the electorate so decides. If it is to be Mr. Wigley, so much the better. If it is to be whoever leads the Welsh Liberal Party—it might even be the noble Lord, Lord Thomas of Gresford—that is also fine by me.
Trying to debar people from actively participating in this great moment of national liberation for the people of Wales because a former Secretary of State does not like it would be a political disaster on the part of this
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House. Surely this House has learned that its historic role should be to allow devolved nationalities in this kingdom to progress and that it should not try to interfere in a legitimate political process within Wales.
5.45 p.m.
Lord Roberts of Conwy: My Lords, the noble Lord, Lord Elis-Thomas, totally fails to distinguish between the position of a Member of Parliament—of this House or of the other House—and the position of a Minister in the United Kingdom Government, and their relationship with the assembly. There seems to be very little objection generally to the dual mandate idea for assembly members. The Bill provides for their election. Similar provision is made in the Scotland Bill. There are also provisions governing consequential adjustments in salary and so on.
There are obvious advantages and, indeed, disadvantages to dual membership of, say, this Parliament and the Welsh assembly, or of this Parliament and the Scottish parliament—or, indeed, any other body. The advantage is clear. A Member of the European Parliament, for example, would bring much experience to the assembly. The disadvantage is the question raised by my noble friend Lord Crickhowell. I refer to whether a person has enough time to do both jobs properly. However, that is not the issue here.
In this amendment we are concerned with a Minister of the Crown—a member of the United Kingdom Government whose first allegiance is to that Government—becoming a member of the assembly. In general Ministers are required to give up outside interests of all kinds that may conflict with their ministerial duties. I have heard of Members of Parliament with dual mandates in that they are members of other directly elected bodies, such as local authorities, regional parliaments like Stormont, the European Parliament and so on, but I have never heard of Ministers being members of such bodies. I am sure that somehow the guidelines to Ministers must apply.
There are also practical difficulties of dual membership for Ministers who may be seeking election to the assembly. Ordinary Members of Parliament of either House may cope, but I do not believe that Ministers are capable of performing both functions adequately because of the difficulties of time and the practicalities. If one looks at this from a practical standpoint, it is a reasonable assumption that if a Minister—
Lord Wallace of Saltaire: My Lords, perhaps the noble Lord will permit me to pose a question. I am puzzled by the noble Lord's absolutist position that a person can hold allegiance to only one level of government. Yesterday marked the end of a six-month period during which British Ministers were loyal to the British Crown and at the same time also represented the European Union by holding the presidency of the EU. Does the noble Lord adopt the same logic that those two functions are themselves incompatible, or is it possible

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for Ministers to take different levels of loyalty and responsibility into account above the level of the nation state, possibly not below it?
Lord Roberts of Conwy: My Lords, I do not believe that the question of loyalty arises. We belong to the European Union. Every six months the leadership of the Union changes. We have taken the chair of different committees and have had leadership of the Union for that period. It is possible to have dual loyalty but those two loyalties are ultimately reconcilable, particularly in the case referred to by the noble Lord. Here we have an entirely different situation. We are talking about a Minister of the United Kingdom Government who seeks office as an executive of the assembly and the conflict of interest that inevitably arises. I am not sure whether the noble Lord was in the Chamber to hear the speech of my noble friend Lord Crickhowell. My noble friend spoke about the various duties and responsibilities of a Secretary of State under the Bill and the duties and responsibilities of a first secretary in the Welsh assembly. If noble Lords study the relationship between those two sets of responsibilities they will agree that it is extremely difficult for the same person to perform both.
It is reasonable to assume that if a Minister of the Crown becomes a member of the assembly he will seek membership of the executive. He may not necessarily be elected to the position of first secretary but he may be appointed to an assembly secretary's position. That situation has been anticipated by the Government. The noble and learned Lord the Solicitor-General when winding up the Second Reading debate said:
"The Bill does not prevent one person being both assembly first secretary and Secretary of State for Wales. Whether one person would fill both posts is a matter for the political parties in selecting candidates, for the electorate at the ballot box, for the assembly in choosing who is to lead it and for the Prime Minister of the day. The Secretary of State will be chosen by the Prime Minister and will be bound by Cabinet collective responsibilities while the first secretary will depend on the confidence of the assembly".—[Official Report, 21/4/98; col. 1134.]
As the Minister has said, there will be a role for the Secretary of State in Cabinet in the United Kingdom Government and he can also be first secretary subject to the views of the assembly and the Prime Minister.
It is quite clear that this situation has been anticipated. It is questionable whether the holding of both positions by the same person can be reconciled. There are enough examples within the Bill of the Secretary of State having duties relating to the first secretary and the reverse. It is questionable whether both jobs can be done by the same person. The idea that they should be done by the same person was certainly not in the minds of those who first drew up the Bill. It is clear that that idea has developed recently. The Secretary of State has powers which are to be transferred to the assembly. Why transfer those powers if they are to be exercised in effect by the same person? Rather than power being devolved to the assembly and the person being elected by the assembly, the Secretary of State—the governor-general, as it were—becomes the choice of the assembly and the first secretary. It is questionable because he has to be elected to that position by the assembly.
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To give an example, the Secretary of State has power to intervene if international treaty obligations are infringed or cross-border issues arise. Why does he need such powers to act against himself if he is to become first secretary? I do not believe that that was envisaged originally. The possibility arises now as the assembly's advent draws near and the problems of implementing the Bill and the possibility of conflict become more apparent. For example, the location of the assembly is still not decided. The Secretary of State has arrived at a certain decision but when the assembly is elected next May his decision may be changed. The assembly may be in an altogether different location.
I can understand and sympathise with the argument that there may be a need for a transitional period in which the assembly beds down, but surely the Bill allows for that. There is no real need to hasten the process. The transfer of functions can be gradual. It is curious that while there is a prospect of the Secretary of State for Wales becoming first secretary of the assembly no similar proposal has been canvassed for Scotland. One is told that the Secretary of State for Scotland might have considered the possibility of becoming chief executive of the parliament but he very soon dismissed the idea as a nonsense. As to the need for a transitional period, I believe that that is an argument of convenience. It can never outweigh the arguments of principle, which are all against this combination of offices and powers.
The Secretary of State cannot serve two masters with any degree of conviction. There is bound to be a conflict of loyalties between the United Kingdom Cabinet and the Welsh executive, between Westminster and the assembly. We appreciate the difficulties that will arise if the Secretary of State and the first secretary are one and the same. It is because we appreciate the difficulties that we should anticipate them and prevent this strange union from taking place.
6 p.m.
Lord Dixon-Smith: My Lords, I should like, if a mere Englishman may intervene in this Welsh family squabble for a brief moment, to support my noble friend's amendment.
The European parallel drawn by the noble Lord is incorrect. The comparison that should be made is if a Minister of the Crown were at the same time attempting to be a commissioner in Brussels. That would be a much more problematical situation than the one the amendment seeks to prevent.
I have limited experience of dual mandates. I accept the principle and welcome the possibility of dual mandates—but at the ordinary member level only. Even then, you would need an exceedingly robust constitution to survive the dual pressure. I have seen very good men torn to shreds by it.
I am a proud member of a county council. When a predecessor of mine, my noble friend Lady Platt of Writtle, was vice-chairman of the council, she came to this place and then went off to the Equal Opportunities Commission, of all interesting posts. There arose a question as to whether she could in that situation carry a dual mandate and be chairman of the county council.

715
The view of the council was absolutely clear: she could not do both jobs because both jobs were too important. That is at a much lower level than the situation we are considering here.
The conflict of interests between being a Minister of the Crown and the head of the Welsh national assembly is such that it would impose intolerable burdens on any individual. It would be wise if that situation were prevented.
Lord Onslow of Woking: My Lords, I support my noble friends Lord Crickhowell and Lord Roberts of Conwy. There must be a conflict of interest which could arise not only from the dual mandate but from holding dual offices in the assembly and in the Cabinet. If such a conflict arose it could cause grave damage to the assembly itself.
If the holder of these two offices comes wearing both his hats to the Royal Welsh Show and there encounters evidence that a great number of farmers in Wales are discontented and unhappy about the position in which they find themselves and are looking to the Government to put that right, or if in going down the streets of Builth he encounters people who are very concerned about the proposed reorganisation of local health services in Powys and Ceredigion, he will find himself in a difficult position.
If he holds only one office he will have no difficulty in saying, "I will see that the best that can be done for you is done according to the position in which I find myself". Should he find himself the first secretary of an assembly which shares the view of the local residents who are anxious on these subjects and which presses it to the point where it is almost prepared to vote against the government of the day—of which he is a member—the assembly may feel inhibited by the fact that it would create a political crisis by forcing a situation in which the wearer of two hats would be obliged to take one of them off and resign one or other of his offices. That might inhibit the freedom of the assembly to stand up for the interests of the people of Wales.
I am not saying that that will necessarily happen next year when the assembly is created, but these are not entirely fanciful possibilities. It would do grave damage to the perception of the assembly in Wales if it were thought by the electorate that there was some inhibition which prevented it from operating in a way which was truly representative of that electorate's best interests.
Lord Simon of Glaisdale: My Lords, from the outset I have been a devolutionist. I am in general sympathy with the thrust of this Bill, as I have been from the outset. I have taken that view from the very moment we discussed the Welsh Referendum Bill.
At this stage, having listened to the argument, I find myself absolutely persuaded by the noble Lord, Lord Crickhowell, and the noble Lords who have spoken in his support. It goes against the very spirit of devolution if a member of the Cabinet—particularly if he be Secretary of State for Wales—can take his place in the assembly.
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Apart from that, over and over again potential conflicts of interest have been pointed out, which we should avoid. From the Cross-Benches, as a devolutionist, if the House is divided I shall have no hesitation in following the noble Lord, Lord Crickhowell.
Lord Williams of Mostyn: My Lords, the first thrust of the propositions that the noble Lord, Lord Crickhowell, put forward was that we ought to avoid the appearance of nannying, that in some way the Labour Party would be able to use spin doctors to impose their nannyish will upon the assembly in Cardiff. Nannies can impose: "Eat up your greens and/or rice pudding". Nannies can also prohibit: "You must not watch television after nine o'clock. You must not be able of your own free choice, as a devolved assembly, to choose who shall be your first secretary". That is what it comes to.
Many of your Lordships conceive there to be principled objections to these matters. Those principled objections substantially and significantly derive from the past history of our constitutional arrangements. As the noble Lord, Lord Elis-Thomas, said today, not for the first time, and as noble Lords on the Liberal Democrat Benches have said on prior occasions, we are dealing with new arrangements which cannot necessarily be circumscribed or constrained by past political or historical experience.
Amendment No. 22 would put an absolute legislative veto, an absolute prohibition, upon any Minister of the Crown becoming a member of the assembly. These amendments are not entirely the same. The prohibition in Amendment No. 22 would disqualify a Minister of the Crown, whatever his ministry were, whatever his occupation in government were—for instance a Law Officer—from being a member of the assembly. There might be some circumstances in which it would be entirely appropriate for a Law Officer to be a member of the assembly, particularly in the early months and years of the assembly's work. It is not for me to determine, nor for your Lordships to exclude, what would be the decision of the electorate in Wales. When it came to the first secretary or the leaders of committees or secretaries of committees, it would then be a decision of the assembly. The Labour Party presently has many virtues, but omniscience is not one of them so far as I perceive. Power is not one of them.
We are to have a freely elected assembly in Wales on a deliberately inclusive proportional representational scheme specifically devised and put in the Bill to ensure that the Conservative Party will have a fair proportion of representation. That is a generous view. It is undoubtedly objectively generous. It is much more generous than would have been the case if devised by any other party. There is likely to be a significant Plaid representation and a significant Liberal Democrat representation. This is the moment when we say, "We shall devolve to you." Why? "Because, without presumption or being patronising, we trust you to attend to your own affairs." Despite that, there seems to be the belief that says, "small infant, you cannot crawl. You will not be allowed to totter. Nanny will be there to stop

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you." So it is not just a question of blunt principle, dimly remembered, from constitutional arrangements which formerly existed which are utterly overtaken in many ways by the new assembly.
Amendment No. 22 does not prohibit a Member of Parliament in another place from being a member of the assembly, or a Member of the European Parliament, or a Member of this House. There might well be conflicts there, but the point about conflicts is that, when detected—not when presumed, conjured up from the fevered imagination—someone has to come to a particular conclusion. I am most grateful to the noble Lord, Lord Dixon-Smith, for the illustration that he proffered because it underlines the point I seek to make.
The noble Baroness in question was offered the opportunity of two co-existent, though not coterminous, positions of authority: one on the county council and one as the chairperson of the organisation the noble Lord specified. What happened? Questions were legitimately raised. The conclusion was arrived at. By whom? By the local authority, not by absolute prohibition by any Act of Parliament. The local authority came to the conclusion that that was inappropriate. The county council is trusted therefore to detect and gently chide the noble Baroness, or gently raise the question: "Is this appropriate?" It came to its own independent conclusion. But this assembly is not allowed to have that.
Devolution? Hobbled discretion is not, I think, what we were about. It is said that no one of the 50.6 per cent. majority considered the possibility of a Minister of the Crown being a member of the assembly. But did they reject it? Was it the pressing question of the day in any of the discussions? I rather doubt it. The whole point about devolution is that one devolves. One is not washing one's hands of the issue. One is saying to the new infant, "We shall trust you to mature in your own way. New arrangements for different times are for your informed discretion, not for nanny's prohibition on the face of the Bill."
The later amendments focus more distinctly on what, I hope I say without presumption, has been the significant question in the mind of the noble Lord, Lord Crickhowell, because he ventilated these questions at earlier stages. Amendments Nos. 70 and 73 are intended to disqualify the Secretary of State for Wales, or any other Minister of the Crown, whatever his ministry—I repeat in parenthesis—from being an assembly first secretary or even an assembly secretary.
We forget two things in language, which I say gently and politely is somewhat over-extravagant for our present situation. No one can be first secretary of the assembly or any form of secretary in the assembly without the assembly wanting that to be the consequence. In other words, we are devolving choice—that is, power—to the assembly to choose the first secretary and any other secretary it might think appropriate. I emphasise the words "it might think appropriate." And that at a time in the first nine months of the assembly's life or at some time in the future when a person might be the free, unfettered choice of a freely elected assembly on a proportional basis.
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If that person happened to be a Minister of the Crown or a Secretary of State for Wales, why should the assembly not have that choice? Because the checks and balances are there all inbuilt. There is no diktat; there is no governor general. This is not the raj. Governors general in the great raj were not, so far as my historical knowledge goes, ever subject to dismissal by a locally elected house of parliament. They were imposed by a government in Westminster, thousands of miles away.
It is not a governor general who is to be imposed on a assembly. It is moderately insulting to an assembly to think that it would be susceptible to such an imposition. The first check is that we have an election. The second check is that the elected persons—whether we think the choice of the electorate is right, wrong, or indifferent—then have a block, if they wish, because they can vote down the first secretary at any time. They can dismiss secretaries at any time. It may be a rather more powerful assembly in Cardiff Bay than one sometimes finds in another place in this building.
The other safeguard is that it is for the Prime Minister to propose to his Cabinet, subject to the endorsement of another place, who should be Secretary of State, who should be his Minister. If the Prime Minister—whoever it might be at whatever time in the future—comes to the conclusion that the person best suited for public service—that is important—as Secretary of State for Wales, or in any other ministry of the Crown, happened to be someone who had the democratic mandate of the electors in Wales, why should he not have the option open at least to put it to his Cabinet colleagues, for the approval of another place—or, I concede, the majority in another place?
I recognise the principles behind the amendments. I give them, I hope, a decent regard, because I honour the motive that engenders them. I believe that they are fainthearted in the end; that they approach the assembly with a feeling of infinite mistrust; and that they are in fact quintessentially nannyish in the sense of, "We can stop you doing this. We are more powerful than you. We shall use our power."
Lord Crickhowell: My Lords, I need not detain the House for long. The Minister is a distinguished advocate. He did his best, but his case was pretty thin. The real case was advanced by the noble Lord, Lord Elis-Thomas. It was that Mr. Ron Davies wishes to do it, and therefore it is a matter for him. He suggested that it was desirable that people should be able to opt for different levels of government. Yes, but they should have to opt; they should have to make a choice. We are not trying to deter anyone from taking part in the assembly's work, but any Minister who wishes to should choose in which parliament and administration he wishes to serve.
We were told that if it were necessary for Mr. Ron Davies to return to save the nation from his post in the assembly, having abandoned the British Cabinet, he could not do so. That is wrong. He could perfectly well be appointed by Her Majesty to lead an administration, and do what Ministers always had to do in this country

719
for many decades—then to seek election as a Member of Parliament. It was the practice for Ministers to have to resign before taking up office. I am thankful to say that in my time the practice had been abandoned and I did not have to go through that performance. However, it would be perfectly open to Mr. Davies to do so if he wished.
The noble Lord on the Liberal Democrat Benches asked about Europe. The situation there is different. The administration takes collective decisions about our position in Europe; it is not a question of one individual with a different set of interests having to take decisions which may be in conflict with the government of which he is a member.
We were told by the Minister—it was the only case that he advanced—that the proposal would interfere with the free choice of the electorate. I do not believe that that is true because, as I have said, it is open for Mr. Davies and any other Minister to decide to stand for the assembly, to opt for that level of government, and to offer themselves to the electorate of Wales. I wish to test the opinion of the House.
6.20 p.m.
On Question, Whether the said amendment (No. 22) shall be agreed to?
Their Lordships divided: Contents, 113; Not-Contents, 94.

Division No. 2

CONTENTS

Aberdare, L.

Denton of Wakefield, B.

Ailsa, M.

Dixon-Smith, L.

Anelay of St. Johns. B. [Teller.]

Ellenborough, L.

Attlee, E.

Elliott of Morpeth, L.

Belhaven and Stenton, L.

Elton, L.

Bethell, L.

Erroll, E.

Biddulph, L.

Flather, B.

Biffen, L.

Fraser of Carmyllie, L.

Blatch, B.

Glentoran, L.

Bledisloe, V.

Harmar-Nicholls, L.

Bowness, L.

Harrowby, E.

Brabazon of Tara, L.

Haslam, L.

Braine of Wheatley, L.

Hayhoe, L.

Brougham and Vaux, L.

Higgins, L.

Burnham, L. [Teller.]

HolmPatrick, L.

Byford, B.

Home, E.

Cadman, L.

Hunt of Wirral, L.

Caithness, E.

Inglewood, L.

Carnegy of Lour, B.

Ironside, L.

Carnock, L.

Jopling, L.

Chalfont, L.

Kenyon, L.

Chesham, L.

Kimball, L.

Clark of Kempston, L.

Kinloss, Ly.

Colwyn, L.

Kintore, E.

Cope of Berkeley, L.

Lawrence, L.

Courtown, E.

Liverpool, E.

Cowdrey of Tonbridge, L.

Lucas of Chilworth, L.

Cranborne, V.

Luke, L.

Crickhowell, L.

McColl of Dulwich, L.

Cross, V.

Mackay of Ardbrecknish, L.

Dacre of Glanton, L.

Mackay of Drumadoon, L.

Darcy de Knayth, B.

Mancroft, L.

Dartmouth, E.

Massereene and Ferrard, V.

Dean of Harptree, L.

Milverton, L.

Denham, L.

Monro of Langholm, L.

720

Montgomery of Alamein, V.

Renton, L.

Mountevans, L.

Roberts of Conwy, L.

Mowbray and Stourton, L.

Rotherwick, L.

Moynihan, L.

Rowallan, L.

Munster, E.

Savile, L.

Naseby, L.

Sharples, B.

Norfolk, D.

Simon of Glaisdale, L.

Northesk, E.

Stanley of Alderley, L.

Norton, L.

Stodart of Leaston, L.

O'Cathain, B.

Strathclyde, L.

Onslow of Woking, L.

Swansea, L.

Oxfuird, V.

Tebbit, L.

Park of Monmouth, B.

Teviot, L.

Peel, E.

Thomas of Gwydir, L.

Pender, L.

Trefgarne, L.

Pilkington of Oxenford, L.

Trumpington, B.

Plummer of St. Marylebone, L.

Tugendhat, L.

Prior, L.

Vivian, L.

Rankeillour, L.

Waddington, L.

Rawlings, B.

Weatherill, L.

Rees, L.

Wilcox, B.

Wise, L.

NOT-CONTENTS

Acton, L.

Jeger, B.

Ashley of Stoke, L.

Jenkins of Putney, L.

Barnett, L.

Judd, L.

Berkeley, L.

Kennedy of The Shaws, B.

Blackstone, B.

Kennet, L.

Blease, L.

Kilbracken, L.

Borrie, L.

Kirkhill, L.

Brooke of Alverthorpe, L.

Lockwood, B.

Brooks of Tremorfa, L.

Lofthouse of Pontefract, L.

Bruce of Donington, L.

Longford, E.

Burlison, L.

McIntosh of Haringey, L. [Teller.]

Carmichael of Kelvingrove, L.

Mallalieu, B.

Carter, L. [Teller.]

Merlyn-Rees, L.

Chandos, V.

Milner of Leeds, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Clinton-Davis, L.

Molloy, L.

Cocks of Hartcliffe, L.

Montague of Oxford, L.

David, B.

Morris of Manchester, L.

Davies of Oldham, L.

Perry of Walton, L.

Dean of Beswick, L.

Peston, L.

Dean of Thornton-le-Fylde, B.

Pitkeathley, B.

Desai, L.

Prys-Davies, L.

Dixon, L.

Ramsay of Cartvale, B.

Donoughue, L.

Randall of St. Budeaux, L.

Dormand of Easington, L.

Rea, L.

Dubs, L.

Rendell of Babergh, B.

Elis-Thomas, L.

Richard, L. [Lord Privy Seal.]

Evans of Parkside, L.

Runcie, L.

Falconer of Thoroton, L.

St. Davids, V.

Farrington of Ribbleton, B.

Sefton of Garston, L.

Gallacher, L.

Sewel, L.

Gladwin of Clee, L.

Shepherd, L.

Glenamara, L.

Shore of Stepney, L.

Graham of Edmonton, L.

Simon, V.

Grenfell, L.

Simon of Highbury, L.

Hardie, L.

Smith of Gilmorehill, B.

Hardy of Wath, L.

Stoddart of Swindon, L.

Haskel, L.

Stone of Blackheath, L.

Hayman, B.

Strabolgi, L.

Hollis of Heigham, B.

Symons of Vernham Dean, B.

Howie of Troon, L.

Taylor of Blackburn, L.

Hoyle, L.

Thomas of Macclesfield, L.

Hughes, L.

Turner of Camden, B.

Hunt of Kings Heath, L.

Walker of Doncaster, L.

Irvine of Lairg, L. [Lord Chancellor.]

Watson of Invergowrie, L.

Whitty, L.

Williams of Mostyn, L.

Islwyn, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
6.28 p.m.
Lord Hooson Lord Hooson moved Amendment No. 23:
Page 8, line 46, at end insert—
("( ) A person who is a member of—

(a) the House of Commons,

(b) the European Parliament, or

(c) any unitary authority in Wales,

is disqualified from being an Assembly member, unless he is an Assembly member returned at the first ordinary election for the Assembly during his term of office as a member of a body mentioned in paragraphs (a) to (c), in which case such disqualification shall not apply until the next subsequent ordinary election.").
The noble Lord said: My Lords, as the Minister said in discussing the previous amendment, I wish to uncouple this amendment because it deals with the broader issue. I wish to challenge the idea that one can have a dual mandate; one to an elected assembly for Wales and, say, to the House of Commons, the European Parliament or even the unitary authority for Wales.
The noble Lord, Lord Williams of Mostyn, rightly observed that we are experiencing an innovative period in the history of our country with devolution in many areas, and it is time that we had a proper debate on the desirability of a dual mandate.
I believe that during the first four-year session of the Welsh assembly it will be highly desirable to have members who are or have been Members of the House of Commons or the European Parliament or who are in local government, because they will bring great experience to bear on the affairs of the assembly. The advantage of having members from the House of Commons or from the European Parliament is that they will have dealt with affairs at a higher level than people in local government. Furthermore, people in local government are often closer to the electorate and know what affects their everyday lives. As the assembly will be concerned with the overall distribution of the budget for Wales, it is important that during its early stages there is a fusion of different experiences and skills.
I wish to take your Lordships for a moment to the period thereafter. Surely the assembly will have set its own standards and by that time will have succeeded—we all hope that it will—in establishing its own style, loyalties, and so on, and its own level of debate. Thereafter, it is highly undesirable that a person should take upon himself to be an elected member of the assembly, chairman of a local authority and a Member of Parliament in the House of Commons at one and the same time. That is highly undesirable.
I have always been basically a federalist. The great advantage of a federal constitution eventually is that it has a clear division of powers. I understand that in the United States, for example, one cannot be a member of the state assembly and a member of Congress. In the German federal system, one can be elected by the Länder to the upper house but one cannot be a member of the lower house and a member of the Länder.
In this country, we should face the real issue of the future under a devolved system of government: we shall have an assembly in Northern Ireland, a parliament in
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Scotland and some kind of assembly in London. We must face up to the question of whether it is right that people should take upon themselves, as it were, the carrying of a number of mandates.
I believe—and it is the view I wish to put to your Lordships—that it is highly undesirable. Eventually, there is the question of duality; and students of Edmund Burke will be aware of his views on the dangers of duality. I know that the Secretary of State for Wales takes that view at the moment as he invited informal discussions on the Bill which were extremely helpful. We have had across-the-table discussions with him informally, and I am disclosing no secrets. I raised this matter on the address on the Queen's Speech and on the Referendums Bill. He was good enough to tell me that he appreciated entirely the point that I was making but thought that it should be dealt with at party level; that is, that it should be a question for the internal discipline of the party. It might be highly undesirable to have a person who was both a Member of the House of Commons and a member of the assembly, with different loyalties and different priorities. Where will he be on a given day? Will he be in Westminster or Cardiff? That may be a problem in view of what we were told earlier by the noble Lord, Lord Crickhowell, about the train services between the two.
I was amazed by the views put forward by my noble friend Lord Elis-Thomas. He adopted the description of him by the noble Lord, Lord Crickhowell, as being an autumnal radical. As I listened to him, I thought, "Dear Dafydd, as he gets older he becomes more autumnal than radical". My noble friend put forward the proposition for the acceptance of any number of responsibilities, and an acceptance of the principle of duality or even more.
I reject that. For the first four years of the Welsh assembly, Scottish parliament and the Northern Ireland assembly, there is a good deal to be said for the expertise being spread around. But thereafter, we must face up to this problem, especially if we are to have more and more devolution. How unfortunate it was to have Members of the House of Commons being also members of the European Parliament. They were not doing justice to either establishment. That is likely to be the result in the future.
It is not a matter of claiming expenses, two salaries, or anything like that. The Secretary of State is well aware of the matter—if I am not mistaken, the Bill deals with it or it will be dealt with—that people cannot draw two salaries, two sets of expenses, and so on. I am not concerned with that aspect of the matter, although given the experience of the noble Lord, Lord Williams of Mostyn, and myself in previous years with various matters concerning local government in Wales, it is just as well to bear that aspect in mind too.
However, I believe that it is necessary for this House and the public generally to consider whether in future they want to have people who are members of the assembly but who remain Members of the House of Commons; whether they want people who will give their first priority to the assembly—and I am dealing now specifically with Wales but the issue has a much broader

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input—who are loyal to the it, and who will make it their first obligation, their real interest; or whether we shall allow that duality to take place.
I move this amendment in the hope that it will provoke a real debate on the issue as a preliminary to a broader debate on the future development of the devolutionary process in our country. I beg to move.
Lord Crickhowell: My Lords, the noble Lord, Lord Hooson, has made a powerful speech in support of the arguments which I put forward on the last amendment as regards Ministers. I am only sorry that he and his colleagues stayed on their Benches and did not vote on the issue.
However, on this matter, I do not agree with the noble Lord. I want to make it perfectly clear that while I was opposed to a dual mandate among Ministers because I thought there were intolerable conflicts, I do not see that the same conflict occurs in relation to representatives of the assembly sitting as Members of Parliament. Indeed, I remember a number of colleagues when I was in the other place, who served with distinction in both places and made an important contribution to the work of both places.
On the last amendment, the noble Lord, Lord Elis-Thomas, and the Minister spoke about choice: about people making choices and the assembly taking choices. Here I really do think that there is a situation where people can make choices. I do not understand why the noble Lord, Lord Hooson, should feel that this restriction should be imposed. Indeed, I do not really see the logic of saying that it may be all right for the first four years but not thereafter. Actually, the first four years may be the most difficult ones when the burden is greatest and when the difficulty of reconciling conflicting interests, and so on, will be at their most extreme. So I hope that on this occasion the amendment will be rejected and I find myself supporting the arguments that I think will be put forward by the noble Lord the Minister. That is perhaps a rare event in our proceedings. I think it is the first time it has happened since we began our consideration of this Bill.
Lord Elis-Thomas: My Lords, I want to put on record my entire agreement with the speech of the noble Lord, Lord Crickhowell and, for once, my entire disagreement with the noble Lord, Lord Hooson. I just do not understand what this is all about, because it is not about people taking upon themselves a mandate, as I think was the phrase used by the noble Lord, Lord Hooson. Surely you cannot take upon yourself a mandate. The mandate is confirmed by the electorate or not confirmed, as the case may be.
I would argue for a federal European-type approach to this issue, namely, that people are able to move between different levels of government. Indeed, there is a positive advantage in having the same people, or some of them, simultaneously being members of bodies at different levels, depending on the kind of debate that develops. That provides the cross-fertilisation which a number of us are concerned about in the relations between the European Parliament, the member-state
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parliaments and the autonomous parliaments of regions and nations at another level, and indeed local authorities. I do not understand why this exclusion should take place or why it should be legislated that there should be a kind of designer-assembly person who is excluded from certain categories.
I would emphasise that in my view it is not for this House, in this case or indeed in the previous case, to lay down the law in these matters. I do say to the Liberal Benches that I think they will regret their decision on the last Division.
Lord Merlyn-Rees: My Lords, a remark of the noble Lord, Lord Hooson, has provoked me to speak on this matter. He equated the situation with Northern Ireland. I believe that it is of the greatest advantage in Northern Ireland that not only is Mr. John Hume a Member of the Parliament down the corridor, he is a Member of the new assembly and also of the European Parliament. Long may he remain so. Whether he is going to be the number two to Mr. Trimble, we shall see. Seamus Mallon is a Member not only of the European Parliament but of the Parliament down the corridor and also of the new Assembly. Long may it be so. Dr. Paisley is a Member of the European Parliament and a Member of this Parliament as well as a Member of the Assembly. He will be on the new executive, and so he should be. I am worried that it may be said that a certain type of person cannot hold other representative offices and be a member of the Welsh assembly. It is of great advantage that they should be, and to lay it down that they should not be is, I believe, a great mistake, from my own experience.
Lord Hooson: My Lords, before the noble Lord sits down, would he not agree that in Northern Ireland a concentration of power in so few hands has been one of the problems facing that Province?
Lord Merlyn-Rees: My Lords, I do not actually believe that. The concentration of power is on the ground, because they have just had elections and 71 per cent. of the electorate voted in a certain way, and now over in Drumcree there is going to be a great crisis. It will be hard to resolve it because of the strong feeling on the ground, but the power does not lie with the number of people who are involved in politics at—I had better not call it regional level because it would be offensive to use that word in this context—Northern Ireland level. The power rests somewhere else, and until that dichotomy is dealt with we are not going to get very far. I believe it is a great mistake to do as this amendment suggests.
Lord Hooson: My Lords, it seems to me in any case that there is a defect in this amendment, although I shall probably be proved wrong. That is because the elections to the unitary authorities in Wales and the election to the assembly are going to be on the same day, so that the period of office for any member of the assembly or any member of the unitary authority ceases at the end of the day before the poll, and on the day of the poll they will be a member neither of the assembly nor of

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the authority. Since the count for the members of the local authority will take place before those for the national assembly, the declaration will have been made. The wording of this amendment would mean that a member of a unitary authority would always be a member of the national assembly.
6.45 p.m.
Lord Mackay of Ardbrecknish: My Lords, this amendment is very different from the one that your Lordships have just passed: the one in the name of my noble friend Lord Crickhowell, which actually narrowed down the angle, so to speak, entirely to Ministers in the Government of the United Kingdom. Obviously I agree with my noble friend and I am delighted that the Division was successful. I very much hope that the Ministers will consider this carefully and will not simply be marched into a negative position by the Prime Minister, who seems to have decided to take decisions about Scotland and Wales very much on the hoof and without giving his Ministers too much chance to talk about these matters. So I hope that we will see a reflective view about the narrow amendment which we have just passed.
We now come to a much broader amendment and I must say that I agree with all the noble Lords who have spoken after the noble Lord, Lord Hooson. I do not agree with the amendment at all. I thought that the speech of the noble Lord, Lord Elis-Thomas, on the last amendment was more appropriate to this amendment. In fact, I agree with a great deal of what he said. The interesting point is that the Liberal Democrats did not vote for the narrow amendment, and now they are asking us to consider this very much wider amendment. I am just a little puzzled about that. There does not seem to be any contradiction in voting for the amendment of my noble friend Lord Crickhowell and then proposing their much wider amendment—but far be it from me to try to puzzle out the position of the Liberal Democrat Party.
I think it is important in these new arrangements that we do allow people to stand at different levels. I can see no great problem about it. It is very much a tradition in many parts of the Continent that people stand, or sit, if I may call it that, at a number of levels. It does not seem to do them any harm. This is an entirely new form of government that we are instituting in this country, and it seems to me that it is up to the political parties, and then up to the electorate, to decide. I hope that the political parties will not be narrow minded about this. I have certainly played my part in preventing the Conservative Party in Scotland from taking any negative view about dual mandates, and I am pleased to say that I was successful there. I agree with what other noble Lords have said, especially in regard to Northern Ireland. It would be absolutely disastrous in a Northern Ireland context if people like David Trimble and John Hume had to decide between the other place and the new Assembly for Northern Ireland. Therefore I am going to find myself in complete agreement with the noble Lord, Lord Williams of Mostyn, on this occasion.
Lord Mishcon: My Lords, is not an odd constitutional position created by the amendment put
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forward by the noble Lord, Lord Hooson, in that a Member of the House of Commons will be disqualified? What about Membership of your Lordships' House?
Lord Hooson: My Lords, the distinction between the two is this: a Member of the House of Commons is elected and a Member of the House of Lords is not. He is either an hereditary Peer or he is nominated to be here and so he does not represent a constituency.
Lord Thomas of Gresford: My Lords, the thrust behind the amendment that my noble friend has moved is really this. We are concerned that there should not be in Wales part-time members of the new assembly. There are 60 of them: that is all. We at Committee stage endeavoured to expand that number because we appreciate the huge amount of business that has to be done by the assembly, with all the committees that have to be manned, as well as the full plenary sessions which have to take place.
In our view, as we put it before your Lordships, it is quite impossible for a person to be a full-time member of the national assembly for Wales and at the same time to play an effective part in representing his constituents in the House of Commons. It may not even be for a Welsh constituency: it could be for another constituency. I see that the noble Lord, Lord Crickhowell, wishes to intervene. I give way.
Lord Crickhowell: My Lords, I am much obliged. Can the noble Lord explain why he thinks that one could be a Minister—that is, both a Member of the House of Commons and a Minister in the UK Government—and also a member of the executive of the assembly? The noble Lord did not find it necessary to vote for my amendment; indeed, he sat in his place. It seems to me that the argument that he has put forward is a compelling one for supporting my amendment.
Lord Thomas of Gresford: My Lords, the noble Lord will also have noticed that we did not vote for the Government. The distinction between our amendment and that of the noble Lord is that we can see the value in the early days, during the setting up of the assembly, in having experienced politicians play their part in that assembly business and thereby creating, through their experience, a new method of operation which will carry on into the future. We do not want to see individuals in Wales becoming—if I may say this in this House—"barons" in particular areas; in other words, taking over the political life of an area at all levels.
The noble Lord referred to Northern Ireland and to the immense contribution of individuals there. However, I sometimes wonder whether it might not be better, in the interests of Northern Ireland, if power were spread among individuals; that is to say, if other people, as well as those well-known leaders who are forever hitting the newspaper headlines, had powers and responsibilities to fulfil at the different levels of government envisaged in Northern Ireland. That is essentially the argument that we are putting forward.

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It is said that no man can serve two masters. But here it is envisaged that a man or woman can perhaps serve three masters. Given today's political climate, it is not possible for an individual to fulfil the responsibilities of a Member of Parliament, a member of the assembly and, indeed, a member of a unitary authority, unless he is a person of the most exceptional ability with the most exceptional support from the people below him. It is not a matter entirely for parties; indeed, we think that it is a matter for legislation.
Lord Williams of Mostyn: My Lords, I must congratulate the noble Lord, Lord Crickhowell, on the way that he marshalled both his arguments and his troops on the previous amendment. I therefore congratulate him on his present victory. However, I am quite troubled. The noble Lord, Lord Elis-Thomas, has been described as an "autumnal radical", and now I am basking in the spring of the approval of both the noble Lord, Lord Crickhowell, and the noble Lord, Lord Mackay of Ardbrecknish. I wonder what I have done to deserve that.
Lord Thomas of Gresford: My Lords, is the Minister aware that the "autumnal" Peer was seen jogging in St. James's Park this morning in shorts and a T-shirt?
Lord Williams of Mostyn: My Lords, not a pretty sight I am sure. I have always found that joggers are normally of the elderly tendency.
The noble Lord, Lord Crickhowell, is, of course, an example of the "sea-green incorruptible". He put his logic to one proposition, which he persuaded your Lordships to support, but now says that this position is quite different. It is, it seems to me. There is no answer to the question put by my noble friend Lord Mishcon. The mere fact that one sits in this House unelected does not make the duties any more or less onerous than they are just along the corridor in another place where Members have been elected. Indeed, perhaps we will discover later this evening that our duties are a good deal more onerous than elsewhere. I give way to the noble Lord.
Lord Hooson: My Lords, surely the difference is the fact that we do not have a mandate here. Members of the House of Commons have a mandate as, indeed, do Members of the European Parliament.
Lord Williams of Mostyn: No, my Lords. With respect, that is not a good argument. The noble Lord, Lord Thomas of Gresford, said that we do not want a part-time assembly. But, mandate or not, I suggest that most of your Lordships who congregated here both this afternoon and this evening actually work a good deal harder than many people who have been elected, whether in another place or elsewhere.
The amendment would mean that a Member of Parliament, an MEP or even a member of a local unitary authority could not serve in the assembly after the first four-year period. The noble Lord, Lord Thomas, said
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that it had to be a full-time job. However, I echo the remarks made by the noble Lord, Lord Crickhowell: namely, what happens after those difficult first four years? There is an internal inconsistency which I spy with my little eye. There is no reason at all why the electorate should not make a choice if they wish—and this is most important. No one can take upon themselves the mantle of being an assembly member; he or she has to be elected. If the voters wish to vote for an MEP or a Member of Parliament—for example, someone of the quality of John Hume or Seamus Mallon—why should they not be able to do so if their immediate political circumstances and desires would be reflected by that outcome? The amendment is unduly prescriptive. There is no sense in limiting this to four years. Therefore, I invite noble Lords to reject the amendment.
Lord Hooson: My Lords, I made it clear in my introductory remarks that I did not really intend to press the matter to a vote. However, I thought that it was a matter which ought to be debated. I am sure that it will be debated more and more, both in this country and in Europe generally, in the years to come. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Effect of disqualification]:
[Amendment No. 24 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 25:
Page 9, line 45, leave out ("any proceedings of") and insert ("anything done by").
On Question, amendment agreed to.
Clause 16 [Salaries and allowances]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 26:
Page 11, line 3, leave out subsection (4).
The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 27, which raises much the same point. Exhilarated, almost intoxicated, by the acceptance by the noble and learned Lord the Solicitor-General of an amendment that I did not move, I hasten now with confidence to move an amendment designed to get rid of yet another unnecessary provision. That provision is to be found on page 11 of the Bill in Clause 16(4), and says:
"A determination or direction under this section may provide for different allowances for different cases".
Subsection (1) of the clause states that the assembly shall pay to its members,
"salaries at such levels—
(a) as the Assembly from time to time determines".
Subsection (3) provides that:
"A determination or direction under this section may provide—
(a) for higher levels of salaries to be paid to Assembly members holding any of the offices specified in Part III".
In other words, one receives a higher salary if one is in an executive position in the assembly; in effect, a member of the Cabinet system within the assembly. All that is entirely sensible and reasonable.
However, subsection (4) of the clause says:
"A determination or direction under this section may provide for different allowances for different cases".
The "different cases" of those who have executive responsibility in the assembly have already been dealt with. Therefore, what does this subsection do? In fact, it is one of those provisions which pops up on the computer in the office of parliamentary draftsmen, in one form or another. If this provision were omitted, it would make not the smallest difference. In any case, does anyone really suppose that the same determination or direction must make the same allowances for different cases? That being so, we can get rid of a provision that merely swells this statute. I hope that will get rid of a similar provision which occurs in almost every Bill that comes before your Lordships.
The second amendment relates to a similar provision with regard to pensions, not allowances. Clause 18(3) states,
"Different provision may be made under this section for different cases".
Of course they may. Why should the same provision be made for all the different cases? It is absolutely unnecessary to state this. I beg to move.
7 p.m.
Viscount Bledisloe: My Lords, it seems to me that the noble and learned Lord, Lord Simon, has made for this amendment an even more powerful case than he made earlier. Indeed any provision where you could not make different allowances for different cases would surely need express legislation the other way. If you could make only one allowance for different cases, you would have to award the same expenses allowance for the man who has travelled five miles as for the man who has travelled 50. Not only is this unnecessary but it is totally fatuous. The sooner it is removed from the Government computer, the better.
Lord Mackay of Ardbrecknish: My Lords, I have some sympathy with the noble and learned Lord the Solicitor-General because on a number of occasions the noble and learned Lord, Lord Simon of Glaisdale, chided me about unnecessary provisions in some of the legislation for which I was responsible. Having had to respond to a debate on writing legislation in layman's terms, so to speak, I have much sympathy with what the noble and learned Lord and the noble Viscount have just said. Far be it from me to add much in the way of legal points to the points that have been made by the other two speakers. However, as an ordinary reader of legislation, as it were, it is subsections such as Clause 16(4) and Clause 18(3) that make the eyes glaze over. One wonders if, as a mere layman, one has missed something entirely. The noble and learned Lord makes a good case for omitting these provisions from the Bill.
Lord Williams of Mostyn: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has a point which is well worth considering. I promise to do that without guarantee.
Lord Simon of Glaisdale: My Lords, in those circumstances, all that remains for me is to thank my noble friend Lord Bledisloe who is, after all, a famous Queen's Counsel and particularly renowned on matters of statutory construction. I must also thank the noble Lord, Lord Mackay, for his late conversion to the view that I take of unnecessary provisions. I must also thank once again the Minister. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Pensions etc.]:
[Amendment No. 27 not moved.]
Clause 19 [Publication of information about remuneration paid]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 28:
Page 12, line 32, leave out ("of the Assembly").
The noble Lord said: My Lords, this group contains a vast number of amendments. The group starts with Amendment No. 28 and finishes with Amendment No. 236. They are drafting amendments and are intended to bring clarity to the drafting in the Bill and to simplify aspects of accounting provisions for the assembly, Her Majesty's Chief Inspector of Schools and the Forestry Commission during the assembly's first year. Some consequential amendments follow. Amendment No. 125 stands on its own. It is intended to correct a drafting error in Clause 93(8) which otherwise would have required the Auditor General for Wales to produce accounts for each financial year of the assembly.
Without these amendments it would be necessary for the Chief Inspector of Schools and the Forestry Commission to prepare one full set of accounts for the period from 1st April 1999 to the date on which the assembly is set up and another from that date to the end of the 1999–2000 financial year. This is because for the first few months of the financial year, OHMCI would receive its funding direct from Parliament, and for the remainder of the year from the assembly.
I hope that your Lordships will consider that the effect of the amendments is sensible. Their effect would be that for the whole of the financial year 1999–2000 a single set of accounts would be prepared for each body for the whole year and audited by the Auditor General for Wales. The Secretary of State would take decisions on funding for 1999–2000 and would make the payments for the first few months, with the assembly taking over thereafter. A number of the amendments delete the words "of the Assembly" or insert the word "financial". In respect of the former, the words are otiose. I hope that we have improved the drafting, not least by being more economical.
Finally, the Bill in Clauses 91 and 93 makes it clear that the Secretary of State will provide funding for the Auditor General before the assembly is established. As currently drafted, the Bill stipulates that the Auditor General must prepare accounts for each financial year of the assembly. However, the office of the Auditor General for Wales will be established before the assembly. Amendment No. 125 ensures that the

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requirement to prepare accounts should apply from the date of his appointment. I hope that this simplified drafting will commend itself to the House. I beg to move.
On Question, amendment agreed to.
Clause 20 [Oath or affirmation of allegiance]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 29:
Page 12, line 41, leave out from ("not") to ("at") in line 42 and insert ("do anything as an Assembly member (other than take part in proceedings of the Assembly").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 22 [Transfer of Ministerial functions]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 30:
Page 13, line 24, after ("function") insert ("in the fields specified in Schedule 2").
The noble Lord said: My Lords, the amendments in this group deal with the transfer of functions. As we know, the transfer of functions clause is almost limitless in its scope as regards governmental functions exercised in Wales. We seek to limit the transfer of functions to those related to the 18 fields noted in Schedule 2. These are the fields where the Secretary of State currently has functions which are to be transferred by order under subsection (2) of Clause 22. In short, Schedule 2 denotes the extent of the initial tranche of transferred functions.
The question that our amendment poses is whether the scope for the transfer of functions to the assembly should be extended beyond the fields where the Secretary of State for Wales has exercised functions hitherto. It can be argued that the Bill's provisions are right as they stand and that they simply reflect the historical situation regarding transfers in Wales. The functions of the Secretary of State for Wales and the role of the Welsh Office have grown, like Topsy, over the years, as I know from personal experience.
I hope your Lordships will allow me a minor personal reminiscence. When I resigned from my post at the Welsh Office in 1994 I realised that I had served in that department for half its lifetime. The department was established only in 1964, and I joined it in 1979 under the auspices of my noble friend Lord Crickhowell. During my time there I saw the responsibility of the office extend, in education for example from primary to secondary, and to further and higher education. It was a tremendously impressive march as regards functions, and it secured many advances and benefits for young people in Wales.
There are other fields where similar progress has been, and can be, made and where there is scope for further progress. The field of health is one example. I saw many developments in that field and I am sure there will be more in time to come.
The question is whether new fields should be added to those listed in Schedule 2. The 18 fields listed in the schedule where the Secretary of State currently has functions involve the expenditure of some £7 billion. But total government expenditure in Wales is almost
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twice that amount. The key question is whether the assembly's functions are to be limited or extended beyond the Schedule 2 fields to other areas such as social security, defence, and so on—to what might be called the reserved matters.
We are always aware of the Secretary of State's view that devolution is an ongoing process. The question is: how far should it go without further parliamentary consideration? Surely we must put a brake on this roller-coaster sooner or later. We must put a brake on the extension of functions beyond the areas referred to in Schedule 2.
The Scotland Bill has a whole schedule of reserved matters. The Bill before the House is based on a different principle. Even so, we should not abandon control by this Parliament. I believe in a "tight lines" policy. I am sure that my noble friend Lord Mackay of Ardbrecknish would approve of such a policy too. So would others who are devoted to the fine art of angling. It is a sound policy for devolution as well. I believe that we shall live to regret it if we do not set limits for further consideration and review on the devolution of functions. It will be the citizens who will suffer.
Amendment No. 36 refers to Schedule 3. It makes clear that an Order in Council under Clause 22 can extend to,
"any function of a Minister of the Crown".
It is as open-ended as it could be. Does it mean that a function of a Prime Minister, Foreign Secretary or Chancellor of the Exchequer can be transferred by order? I might tell my noble friends that even the Scottish executive is not safe from having a function transferred by order if I read paragraph 10 of Part III of the schedule correctly.
Our aim in Amendments Nos. 31 and 32 is clear. It is to ensure the possibility of transferring functions from, as well as to, the assembly. At present, it is all one way. There is what has been referred to in the past as a ratchet effect. The assembly appears only to be able to gain functions.
The Government already acknowledge in the Bill that they may make mistakes and that an order may have to be laid varying or revoking a previous order. All kinds of circumstances may arise where functions that it may now be thought appropriate for the assembly to exercise may in fact prove inappropriate over time. The clause appears to cover every possible kind of transfer except that described in our amendment. It seems odd that the Government have not included it and made sure that the Bill contains the safeguard provided by the amendment.
As matters stand, should circumstances arise where a transfer back from the assembly to a Minister is necessary, there will have to be special primary legislation. That is the position, as I understand it. That should not be necessary when we can make the transfer of functions asymmetrical by including a useful amendment in the Bill. I beg to move.
7.15 p.m.
Lord Williams of Mostyn: My Lords, if it is convenient for the House, I shall also speak to Amendments Nos. 30 to 33 and 36, since the noble Lord dealt with them all.
Essentially these amendments seek to alter the mechanism under Clause 22 for transferring functions. We debated this matter at length on an earlier occasion. I shall deal as shortly as I can, first, with Amendments Nos. 30 and 33. What we have here is the proposition that the assembly should acquire functions only in the fields specified in Schedule 2—that is, areas where the Secretary of State for Wales exercises functions now.
We intend to transfer to the assembly the functions of the Secretary of State for Wales by means of the initial Order in Council under Clause 22. However, as the noble Lord indicated, the process of devolution, administratively, has been cumulative. The Welsh Office acquired new functions on a regular basis on many occasions when the noble Lord was the appropriate Minister and via subordinate legislation such as is proposed in Clause 22. I therefore suggest that there is no great issue of constitutional principle. We think that that approach should continue.
If in the future the Government of the day, having the permission of Parliament, find it expedient, then functions should continue to be devolved to Wales by order. We have no plans to bring forward further orders. We simply believe it right to maintain a flexible mechanism should the opportunity be required. That is why we have introduced the transfer order process which the noble Lord's amendments would remove.
Clause 22 gives ample opportunity for parliamentary debate through the affirmative resolution procedure if any future government wished to transfer further functions. If these amendments were accepted, it would mean fresh primary legislation, even in relation to the most modest additional functions, where everyone judged that to be appropriate and sensible. I recognise the noble Lord's concern. However, I reiterate that we have no plans to bring forward further orders. We simply think that the mechanism should be available.
Amendments Nos. 30 and 33 could also prevent the transfer order making provision in respect of functions which do not fall neatly into one or other of the fields in Schedule 2. The Government have decided, for instance, that one of the appointments to each of the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council should be made with the assembly's agreement. Those functions could be said to relate to all the fields in Schedule 2 but do not relate to any one of them in particular. There is no reason why the assembly should not have the powers I have indicated, but the noble Lord's amendments might prevent that.
We look to a stable constitutional settlement. Amendments Nos. 31 and 32 are a recipe for instability. Functions could be removed from the assembly or made subject to ministerial control almost at the behest of the Government of the day. We think that that is wrong.
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The Bill is drafted so that the power to transfer functions by order cannot be used to remove functions from the assembly unless the assembly itself—that is important—agrees to it. Clause 102 of the Scotland Bill has a similar effect, so that changes to the list of reserved matters in Schedule 5 to that Bill can be made by order only if the Scottish parliament agrees to it. We believe therefore that Amendments Nos. 31 and 32 will bring about uncertainty and instability.
If there is to be an assembly, which everyone now accepts, powers could be whittled away. That is a recipe for severe conflict. This Bill cannot affect the right of Parliament to pass fresh primary legislation that reduces the assembly's responsibilities. Clause 22 does not therefore affect the ultimate sovereignty of Parliament. But fresh primary legislation would be the proper way to proceed if it were decided to cut away the settlement that this Bill puts in place.
The Government placed limited provisions in paragraph 8 of Schedule 3 to the Bill for the assembly's functions to be subject to ministerial control—for example, in respect of cross-order bodies and functions in an English border area. There are strictly confined powers to override the assembly; for example, those in Clause 108. Amendment No. 32 heads in entirely the opposite direction and holds out the prospect—potentially—of every assembly decision being made subject to consultation with, or the agreement of, a Minister of the Crown. That undermines the very point of the Bill, the very principle which underlies this legislation: that certain decisions should be taken by an assembly elected by the people of Wales.
Amendment No. 36 would leave out paragraph 1 of Schedule 3 to the Bill. That would leave a degree of uncertainty as to whether functions in Acts passed after this Bill is enacted could be transferred to the assembly by order under Clause 22. I have already indicated that we wish to leave a structure available which can bring about the possibility of additional functions being transferred in due time.
The amendment seems to us also to make it possible for any ministerial function in the Bill to be transferred to the assembly. We do not believe that to be right. I hope that my explanation of our approach to these amendments, recognising the legitimate anxieties of the noble Lord, will satisfy him and induce him either not to move those amendments or to withdraw the one under consideration.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for his comments on these amendments. We realise that Clause 22 is pivotal in this Bill and that a mechanism has to be provided for transferring those functions which are currently exercised by the Secretary of State. Nevertheless, we are concerned about the point at which the transfers cease, so that Parliament can take a look at the situation and consider matters further. But we have been over this ground before and are familiar with this territory. I am satisfied with the Minister's reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 33 not moved.]
Schedule 2 [Fields in which functions are to be transferred by first Order in Council]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 34:
Page 82, line 18, after ("Agriculture") insert ("(except functions relating to the Common Agricultural Policy)").
The noble Lord said: My Lords, Amendments Nos. 34 and 35 return us to the difficult question of the relationship between the assembly, the Government in Westminster and the European Union. Of all the subjects laid out in Schedule 2, agriculture and fisheries are the ones that concern me most when it comes to the devolved position. If we had not been members of the European Union, if we had not had a common agriculture and a common fisheries policy, then I would not have these anxieties. However, we have those policies and therefore I have those anxieties.
At Committee stage I explained the current situation; how agriculture and fisheries Ministers—I shall make the argument for agriculture to save me doubling up on terms each time, though the same argument applies to fishing—the MAFF Minister, the Welsh, the Northern Irish and the Scottish Ministers (or their officials) discuss between the departments the various issues that will arise at Council meetings. Often agreement can be reached between officials as to the British position of what the so-called "wish list" might be, with Ministers being copied the papers.
Occasionally, and perhaps more often than not, Ministers themselves meet fairly informally and make the final decisions and agreements. Then, rarely but it happens, Cabinet sub-committees are convened in order to resolve any major differences that arise between MAFF and what are called the territorial departments. The MAFF team then goes to Brussels and, currently, Ministers from Wales, Northern Ireland and Scotland can be part of the delegations because they are Ministers of the United Kingdom Government.
As I explained to your Lordships on a number of occasions, when I was the fisheries Minister at the Scottish Office I went to Brussels and on at least one occasion I can recall that I led for the United Kingdom on United Kingdom matters, not just on Scottish matters. I underline that point because I felt it was being missed in Committee by Government Ministers: that is, that I was there as a member of the United Kingdom Government, not as a member of any other government.
The situation will be different once devolution takes place. I fully accept that officials of the Welsh assembly involved in agriculture will be able to have discussions with their colleagues in MAFF to agree positions. I fully accept also that the agriculture secretary—I imagine that there will be one—will have discussions with his opposite numbers in MAFF and, because they will all be reasonable men and women of good will, they will probably be able to come to an agreed position. Sometimes it may be difficult to come to such an agreed position. I believe I am right in thinking that, if they cannot come to an agreed position, the position of MAFF will prevail. The Welsh agriculture secretary will
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have to agree with the MAFF position and in any debates in the Welsh assembly he will have to toe the line as agreed by the MAFF team.
The MAFF team then goes to Brussels. Very often issues are decided in the night on the basis of compromises—one gives a little and one takes a little. The wish list is not always ticked off. Though the last government, like this one, always managed to come back with great triumphs, the truth was that more often than not we had not obtained everything on which we set out minds. We had to make compromises; and that is part of the whole point of being members of the European Union—everyone has to make compromises to obtain agreement. They cannot leave without agreement because people depend on the decisions made under the common agricultural policy and the common fisheries policy. Unlike almost every other policy, those policies are absolutely vital to the two industries.
While the Welsh agriculture secretary may be allowed to go to Brussels and may—I say "may" because I am not entirely sure about this—be able to get into the outer rooms and the room of the British delegation, and may be able to take part in the discussions during the night, the one place where he will not be able to go is to the table representing the United Kingdom. He will not be able to represent the United Kingdom; and I doubt that he will be able to represent issues which are wider than Wales but involve the whole of the United Kingdom.
At the end of all that, currently the agricultural Minister reports to Parliament and answers questions from Scotland, Wales and Northern Ireland as well as England. I should like to know (because it will help me to think through how all this will work) whether, in the new system, when the MAFF Minister comes back from a Council meeting—let us assume that the Council meeting is important enough for him to make a Statement in the other place—Welsh Members will be able to question him about Welsh aspects or whether the speaker will simply say, "These are matters which have been devolved and are the responsibility of the Welsh assembly". It would certainly help me if I could get a clear indication of how the Government think these matters will be discussed, both in the other place and here. If they are allowed for debate in the other place, I presume that they will be allowed here. If I am told that they will be allowed, it seems to me that almost any issue will therefore be allowed in the other place and that we are simply backtracking on what I understood to be the point of devolution—that these issues go to the assembly.
At the end of our previous debate on this matter I pleaded with the Minister to give me some examples of when ministers representing subsidiary governments, if I may so call them, were able to represent their countries at the Council of Ministers. I am grateful to the noble Lord, Lord Williams of Mostyn, for sending me a letter, which he placed in the Library. At the risk of taking just a few moments, I should like to read it out. It states:
"The more obvious instances which have been identified relate to the German Länder. Because of its particular expertise, Bavaria, for example, has represented the German government at EU meetings where cultural issues have been the main agenda item. Similarly, members of the Catalan autonomous government have attended

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meetings on behalf of the Spanish, where language issues were under consideration. I trust this information goes some way to removing your scepticism that in practice it would not be possible for an assembly member to be part of a UK government delegation, nor indeed to lead such a delegation, if that was the view reached by the UK government".
With all due respect—I hope that the noble Lord, Lord Elis-Thomas, will not be too irritated if I suggest this—I really do not think that cultural and language issues are the stuff of which the European Union is made up.
7.30 p.m.
Lord Crickhowell: My Lords, I am grateful to my noble friend for giving way. As I understand it, on the occasions to which he referred—certainly, this was the information given in another place—although Länder ministers attended the Council meetings on four occasions, they were never the sole representatives of the German Government; and they certainly were not the lead ministers.
Lord Mackay of Ardbrecknish: My Lords, my noble friend's information clearly underlines my reservations, reservations which the letter and the information my noble friend has given me in no way allay. In the letter the examples given are cultural and language issues. Those are a long way from the very serious issues of agriculture and fisheries which are conducted in Brussels and make up the very policy which determines the way farmers and fishermen work and live in this country. While I am grateful to the noble Lord, Lord Williams of Mostyn, for his letter, his examples confirm my concern on behalf of agriculture and fisheries. I am in no way satisfied that agricultural and fishing interests in Wales will be properly represented. My suspicions and fears are in no way allayed.
What I have done in my amendments is to say, "Yes, let's devolve agriculture except functions relating to the CAP and except functions relating to the CFP". I fully accept that the great bulk of the serious and major decisions will therefore not go to the Welsh assembly. They will stay here so that they can be properly represented in Brussels. I make no apology for that. My interest is not to puff up the assembly's position; it is to ensure that the position of Welsh agriculture and Welsh fishing is properly represented at the meetings which count. The meetings which count are not held in Cardiff and are no longer held in London; they are held in Brussels.
I am still full of reservations about handing over agriculture and fisheries to the Welsh assembly when the Welsh secretaries for these subjects will not be members of the United Kingdom Government and, in my view, despite the two examples given, will not get anywhere near the Council of Ministers to represent the UK when these serious matters, which inevitably cross the barriers inside our country, are discussed. The issues discussed are usually complex. They range from Welsh interests, Scottish interests, English interests and Northern Irish interests to whole-UK interests. The only time the Welsh position seems to be capable of being
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preserved will be when there is no difference between the needs of agriculture in Wales and the needs of agriculture in the rest of the United Kingdom.
My reservations remain. I offer my amendment in a positive spirit. I am interested in making sure that as much as possible is devolved. There are issues in agriculture and fisheries which can easily be devolved because they are not included in the CAP and the CFP. But when it comes to the CAP and the CFP, these issues should be reserved for the United Kingdom Government so that they can properly represent them in the Council of Ministers. I beg to move.
Lord Crickhowell: My Lords, I rise only to make one brief point, although I intend to return in a later amendment to the general issue of Europe and to some of the points on which my noble friend has touched. However, because I believe he is absolutely right that there is no way an assembly secretary will be allowed to represent the United Kingdom on crucial questions of agricultural policy, I should like to reinforce and reiterate the question posed by my noble friend about the ability of Members of Parliament to question Ministers when they return from Europe on what has happened in European negotiations.
I hope there is no question of their being told, "It is not a matter for Members of Parliament because agriculture has been devolved to the assembly". It is clear that the negotiations on behalf of the United Kingdom, including Wales, will still have to be led—the Government admit that they will have to be led—by a UK Minister. In practice, the negotiations will have to be carried out by a UK Minister. We need reassurance that Parliament will be able to cross-examine Ministers about their performance in Europe.
Lord Stanley of Alderley: My Lords, I have put my name to this amendment. I am sorry that it has come up at this time because it is rather important. But perhaps noble Lords think that agriculture does not matter as far as the assembly is concerned.
Following the explanation of the noble Lord, Lord Williams, I accept that Schedule 2 is not specific and that more matters could be placed in the schedule or indeed taken out. In my words, that translates into the phrase "Schedule 2 is not worth the paper it is written on". However, assuming that the noble Lord, Lord Williams, persuades me that, as far as concerns agriculture, Schedule 2 means what it says and agriculture will be devolved, I have, like my noble friend, some reservations.
I am sorry to say that the letter which the noble Lord, Lord Williams, kindly wrote to me in answer to my questions in Committee on 2nd June (at col. 288 of the Official Report) does not greatly clarify the matter as to how Welsh farmers will proceed; to whom they must make obeisance; and which aspects of agriculture will be directed from Brussels, Whitehall or the assembly. The noble Lord was specific in answering my Amendments Nos. 60 to 63 when he stated that health and safety and pesticides would not be transferred to the assembly. As far as concerns animal health, welfare and

739
food safety, I gather that, as they are today a joint responsibility of the Secretaries of State, a role will be played by the assembly. I hope I am correct in that.
I did not quite understand how that will work in practice. I presume that the assembly, or rather the assembly's civil servants, will merely initial or approve anything coming from Westminster or Brussels. If that is not to be the case, perhaps the noble Lord, Lord Williams, will enlighten me, and, for simplicity's sake, give me an example of what alterations or additions the assembly could make, and how.
Turning to European Union grants, I gather from the noble Lord's letter that the assembly—and I believe I quote his words—"will have very little discretion". I shall be interested to hear if it has any discretion at all at the moment. As to the future—and the noble Lord quotes Agenda 2000—surely it would be wise to leave things as they are until that occurs, if it ever does, and then to take a decision to transfer powers to the assembly if that seems to be correct. That seems to me to be a fairly easy thing to do. That seems to be the case as regards HLCA and BSP payments and the less favoured areas.
I was interested to read that the assembly will control agri-environmental schemes probably through the Countryside Council for Wales. I am pleased to note that funding for such schemes will be ring-fenced and not come out of the Welsh budget. I hope that the noble Lord, Lord Williams, will confirm that. Therefore, it appears that the great majority of funding and influence on Welsh farmers will not be in the assembly's jurisdiction. So, like my noble friend Lord Mackay, I find it hard to understand how the assembly can produce a meaningful, long-term agricultural plan, much as I should like to see one.
So far as Welsh farmers are concerned, the crux of the matter lies, as my noble friend said, in what deal can be done for them in Brussels. That is where I find myself in total agreement with the explanation of my noble friend Lord Mackay of the problem so well explained that even I could understand it, at Committee stage (cols. 305 to 308 of the Official Report) and again this evening. I shall not repeat my noble friend's case, but I hope that the noble Lord, Lord Williams, will address his points very carefully indeed. I fear, too, that the assembly will be able to exert little influence on the proceedings in the CAP barter wrangle. That is what concerns me most because, needless to say, I want the best deal for the Welsh farmer.
Lord Williams of Mostyn: My Lords, I believe that the noble Lord, Lord Crickhowell, hinted at something which I am about to say; namely, that some of the questions asked by the noble Lord, Lord Mackay of Ardbrecknish, relate to Amendment No. 43 in the name of the noble Lord, Lord Crickhowell, which is related to Clause 29. That deals specifically with representation in Europe. It is probably more sensible if I deal with those matters when I deal with the observations on the amendment by the noble Lord, Lord Crickhowell.
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I shall reply to the present amendments because otherwise one is going to become hopelessly confused. They are specific and seek to exclude functions relating to CAP and the common fisheries policy from Schedule 2. That proceeds on a misapprehension about what Schedule 2 can do and therefore what might be brought about by these amendments.
Schedule 2 simply lists the areas where the Secretary of State for Wales now has functions. Where he does not have them now, they are not listed in that schedule. Where a particular area is listed in Schedule 2, the Secretary of State has to consider transferring functions in that field to the assembly but—and this is the heart of it—excluding a field from Schedule 2 does not prevent the transfer of functions order relating to it because the schedule itself does not and cannot limit the scope of the transfer order under Clause 22.
I understand and sympathise with the concerns of the noble Lord, Lord Mackay of Ardbrecknish, but these amendments cannot prevent the assembly acquiring functions as regards the common fisheries policy or the common agricultural policy. That is the short answer to these particular amendments.
I have written on a number of occasions to various of your Lordships. The noble Lord, Lord Mackay, referred to the letter of 24th June. It echoes what the noble Lord, Lord Crickhowell, said. I simply said,
"I trust that this information will go some way to removing your scepticism that … it would not be possible for an assembly member to be part of a UK Government delegation nor indeed to lead such a delegation if that was the view reached by the UK Government".
I do not believe that the noble Lord, Lord Crickhowell, and I are in disagreement there. But that makes no change from the present position.
Lord Crickhowell: My Lords, before too many assumptions are made of that kind, the noble Lord had better await the discussion that we are going to have on Amendment No. 43. I am going to have some very strong reservations about the way in which representation can take place.
Lord Williams of Mostyn: My Lords, I should have kept to the advice that I gave myself; namely, to try to deal with things in their appropriate place. But I did not want to appear discourteous either to the noble Lord, Lord Mackay, or the noble Lord, Lord Stanley, when they had deviated from the point of the present amendments. Therefore, I shall obey with gratitude what the noble Lord said. I shall not overlook the points that have been raised. However, this is a particularly limited amendment. It tries to say, "Limit Schedule 2 by excluding the transfer of CAP or the CFP". The short answer is that that would not have the result the noble Lord, Lord Mackay, wants for the reasons that I have given, because Schedule 2 cannot limit the transfer order powers in Clause 22. I shall return to the other questions in due time and in their appropriate place.
7.45 p.m.
Lord Mackay of Ardbrecknish: My Lords, I believe that I did not deviate from the amendments, because the argument in favour of exempting the CAP and the CFP from devolution is exactly the argument about who represents them in Brussels and how that is reported back to either the other place, the Welsh assembly and therefore to the representatives of the Welsh people. I may be particularly stupid, but if Schedule 2 says,
"Fields in which functions are to be transferred by first order in council—agriculture except functions relating to the Common Agricultural Policy"
that seems to me self-evidently clear; namely, that functions cannot be transferred relating to the CAP policy. If it does not mean that, then I suggest that the legislation is very badly drafted in some way. Ordinary people reading it ought to be able at least to get a glimmer of the meaning. I believe that the meaning in my amendment is absolutely clear. I am promised that later on my fears may be addressed. I am really torn—
Lord Elis-Thomas: My Lords, I am very grateful to the noble Lord for giving way. Can he specify how he distinguishes between agricultural policy and the common agricultural policy when the whole of agriculture, in terms of financial support, measures and regulations, are held within the common agricultural policy?
Lord Mackay of Ardbrecknish: My Lords, as I believe I said in my opening speech, the fact is that most of the issues involving agriculture and fisheries are tied up in the policy. But there are some agricultural policies which are entirely member-state oriented. There are payments to farmers which are member-state oriented and payments to bodies such as agricultural colleges and certain services which are entirely UK oriented. One could make the distinction. But the bulk of the matters are for Brussels and I do not see any pretence about that. I am trying to find some sort of accommodation which allows me and my noble friends to feel that agriculture and fisheries—especially agriculture in Wales—will be properly dealt with.
I was very tempted to seek your Lordships' opinion, but as I have had what amounts to only half an answer and I am invited to wait until later on when my noble friend's amendment is addressed, I cannot in all justice ask the opinion of the House yet. But I shall have to be better convinced than I have been in the past five minutes before I can resist the temptation to return to this issue either later tonight or at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Whitty: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the House returns no earlier than 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Indebted Poor Countries
7.49 p.m.
Viscount Brentford Viscount Brentford rose to ask Her Majesty's Government how many of the heavily indebted poor countries are likely to experience substantial cancellation of debt in the next three years.
The noble Viscount said: My Lords, at the outset I should like to express my gratitude to all those noble Lords who are to speak in this short debate. It gives me enormous pleasure that the right reverend Prelate the Bishop of Manchester has opted to make his maiden speech in this debate. I am sure that we all look forward to his remarks, as well as to those of all other noble Lords. I wonder whether other noble Lords had the same problem as I did when preparing for this debate, which I did yesterday evening with half an ear and half an eye open to a certain football match that was being played. I hope that I concentrated enough to be reasonably coherent this evening. We may have lost that game, but it was at least good to know that at Wimbledon today Mr. Henman managed to get comfortably through another round.
I am glad that the present Government, like their predecessors, are taking an international lead on this subject. They clearly view it as very important. However, it involves a complex tangle of issues, with some of which I should like to deal when putting this Unstarred Question to Her Majesty's Government. We in the developed countries of the West must bear some responsibility for the present predicament. We, for instance, have lent money to dictators—money which has often been badly misspent. We have also, on the other hand, benefited from the low price of the raw materials of the heavily indebted poor countries (the HIPCs). Another problem is that we should not forget the thrifty countries, such as Botswana, which have not piled up debt but have lived within their means.
The first particular problem that I should like to address is the question of the creditor's balance sheet if the debt is to be written off. In the UK, we have a much smaller problem than do most other G8 countries. We are owed only about one-eighth of what is owed to Japan and one-quarter of what is owed to Germany. Most debt (some 58 per cent.) is owed to specific countries, largely for providing export credit. Another 22 per cent. is owed to the World Bank, IMF and associates, and 20 per cent. is owed to commercial banks. When the UK writes off any debt in this matter, how will that be shown in the creditor's balance sheet? Is that a problem?
I have some suggestions on this issue. First, when loans have been made for specific projects, could they now be turned into equity so that perhaps the UK Government take a 50 per cent. shareholding in a specific project? That was done with Eurotunnel and it turned loan into equity. Capital repayments and interest payments from the HIPCs would cease immediately. If the project became profitable, perhaps dividends on 50 per cent. of the share would become payable to the UK, so there would be a benefit. Secondly, will it otherwise be necessary to increase the PSBR or taxes,

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or is there no worry about the UK's balance sheet in this matter? Thirdly, the lending banks have written down loans. Will the Government consider buying such loans, at low value, and writing them off so that they are cleared from the HIPCs' debt? My fourth suggestion relates to the World Bank and the IMF. Would they consider selling a small part of their gold reserves (perhaps 15 per cent.) to repay debt and at the same time, and in addition, write off a similar amount of debt, which I believe that they could perfectly well do without harming their future capacity to lend?
My second point relates to the debt sustainability analysis procedure. Debt sustainability analysis is the assessment of each country made by outside people with a view to a decision about whether such a country qualifies for debt relief and, if so, how much will be given. Do Her Majesty's Government consider that such provisions today are too difficult to enable the most needy countries to qualify for adequate debt relief so as to lead to real poverty reduction? Do not the proposals look only at macro-economic indicators and not sufficiently at real poverty levels?
Perhaps I may take Tanzania as an example, although it is probably not one of the countries which the noble Lord, Lord McIntosh of Haringey, will cite in his answer. Its decision point is to be pushed back to 1999 and its completion point to 2002. Its current budget allows for 10 dollars per head for debt service and about 2 dollars per head for health and 4 dollars per head for education. That is a pretty disastrous situation. In 1996 the World Bank carried out an assessment of poverty in Tanzania and concluded that over 50 per cent. of its people lived below a poverty line of 1 dollar per day. To achieve the OECD poverty reduction target of halving poverty by 2015, the Tanzanian economy would have to double its growth rate to some 8 per cent. per annum. The current external debt of 8 billion dollars is also a big deterrent to investors. Perhaps an immediate halving of the debt is needed. What steps are Her Majesty's Government now taking to ensure that other bilateral and multilateral creditors commit themselves to the necessary poverty reduction targets?
My third point is to ask Her Majesty's Government what plans they have to ensure that savings made for HIPCs would in practice be transferred into poverty reduction programmes. Perhaps I may quote the words of the Lord Privy Seal in our debate on the G8 summit. I fully agree with the noble Lord, who said:
"it is important that whatever steps are taken, the benefits go to the poor in the country, and that the institutions in the relieved countries are capable of handling it".—[Official Report, 20/5/98; col. 1690.]
That is a very important point.
Vital money saved must be seen both nationally and internationally to be spent on the reduction of poverty, not on commissions to government or on prestige projects as in the past. One way would be for binding guarantees on this expenditure to be given, with programmes being discussed and agreed in advance by government, creditors and donors. There must also be opportunities for external liaison as each programme
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continues. Would Her Majesty's Government consider such a system with a view to suggesting it to the IMF and the World Bank?
I believe that this subject is crucially important—in the UK for our own integrity and international respect, but much more so for the HIPCs. They are really struggling today and it is very important that we help them. Can we please ensure that a substantial start in actual debt reduction has been made by the end of the year 2000, a suitable year of jubilee for the forgiveness of totally irrecoverable debt?
7.58 p.m.
The Lord Bishop of Manchester: My Lords, I am sure that we are all grateful to the noble Viscount, Lord Brentford, for introducing this subject tonight. A long time ago, my mum told me never to speak to anyone until I was spoken to, so it is only after six months of listening and watching, sometimes patiently and sometimes rather impatiently, that I now close my ears, shut my eyes and give voice.
The subject we are considering tonight is not debt while others dine, but the unrepayable debts of the poorest countries of the world—unrepayable because of their huge scale in relation to the sources of the debtors, although not so large in relation to the sources of their creditors.
The magnitude of the problem is illustrated by the fact that between 1990 and 1993, the countries of sub-Saharan Africa transferred 13.4 billion dollars annually to their external creditors, considerably more than their combined spending on health and education. That annual figure of 13.4 billion dollars was prevented from being higher only because much of these debts had been rescheduled, to use the technical language of the World Bank, thereby increasing the long-term burden on people and nations who remain extremely unlikely to be able to pay in future more than they can pay at present. Today, Africa owes the richest countries more than three times the figure that she initially borrowed. The total indebtedness of the poorer countries of the world is of the order of 2,000 billion dollars, according to World Bank figures.
During this decade I have seen for myself some of the problems not as a tourist or as a businessman seeking trade but as a Church leader identifying with local Christian communities. I have camped in the bush in Uganda and stayed in bustees in Pakistan and in the townships of Namibia. I have experience of lack of clean water and sanitation and of direct access to healthcare and education. That is the daily lot of millions of people in the countries about which we are speaking tonight. I have seen the tremendous progress that is being made but also the devastating effects of continued indebtedness on the poor.
When the Secretary of State for International Development visited Manchester last March I and many others were encouraged by her strong endorsement of the Government's White Paper Eliminating World Poverty whose central objective is the sustainable development of the planet, and, most importantly, the single greatest challenge that the world faces: the

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elimination of poverty. I believe that that objective is still at the top of Her Majesty's Government's agenda. Like the noble Viscount, Lord Brentford, tonight I shall be interested to hear the targets. How many countries now face unrepayable debts and are likely to have those debts remitted by the year 2000, the year 2005 and the year 2010?
Can anything be done immediately? I believe that it can. Essentially, the governments of the world's 50 poorest nations need to be accepted as bankrupts and to have their debts written off. The poorer some parts of the world become the greater the instability of the world as a whole—multinational companies who control the terms of world trade are very familiar with that and are anxious about it—and the more difficult it becomes to cope globally with environmental, health and population issues that affect us all. In the long term it is impossible to have a stable Europe and an unstable Africa and to have an environmentally safe Europe and an environmentally unsafe Africa. I ask Her Majesty's Government whether the urgency of the situation is recognised.
As the noble Viscount indicated, there must be some conditionality to the relief of unrepayable debts. It is fair to test a country's probity, economic management, social policies and human rights record before relieving debt or increasing aid. But it would be improper to impose on poorer countries the kind of exactitude that we were unable to attain in the early phases of our development that stretches back nearly 2,000 years. I remind the House that it is only this century that women were given the vote in England. We should not be too pleased about our progress in democracy.
The problem has a social and moral dimension. I am not sure whether I am allowed to mention God in this House. God takes the world seriously. It was out of love for the world that God came among us. He commanded us to love our neighbours as we love ourselves—and we love ourselves quite a lot. We need to do the same for our neighbours and also to love our enemies.
Yesterday I was reminded that Shakespeare put into the mouth of John of Gaunt a description of England as
"this sceptered isle … This precious stone set in the silver sea".
I doubt whether the waters around Britain can be described as silver. We are an island but are we "sceptered"? A scepter is a sign of authority and sovereignty. True, authority comes from the willingness to serve and to offer oneself in generous self-giving above and beyond the call of duty. Thomas Aquinas said that peace was indirectly the work of justice which removes the obstacles but directly it was the work of friendship. Poor countries saddled with unrepayable debts look for our friendship. They long for those nations that call themselves great—we among them—to help them find a way out of their bondage. A very heavy responsibility rests on us all.
8.4 p.m.
Lord Grenfell: My Lords, I am very grateful to the noble Viscount, Lord Brentford, for tabling this important Question tonight. I am also very grateful for the opportunity that it accords me to congratulate the
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right reverend Prelate the Bishop of Manchester on his exceptionally fine maiden speech. This is one of those occasions when one much regrets the severe time strictures placed on speakers in a dinner-hour debate in your Lordships' House. I would have liked to hear the right reverend Prelate speak at greater length on a subject in which he is clearly very knowledgeable and which he approaches with such wisdom, compassion and a great deal of common sense. We look forward to his future interventions in your Lordships' House with keen anticipation.
I should declare a past interest, in that I spent 30 years at the World Bank before retiring from the agency in 1995. Therefore I am somewhat familiar with the developments that led to the eventual establishment of the heavily indebted poor countries initiative (HIPC). However, I can claim no measure of authorship and can therefore speak with a certain amount of objectivity about it. While debt relief is a strong anti-poverty weapon, it must be seen as a component of a much wider and deeper development strategy. Debt relief never has and never can guarantee higher living standards by itself. What it can and must do is help remove the obstacles that prevent a country from fully focusing upon those strategies, policies and measures that are essential to achieving sustainable economic and social development and the eradication of poverty.
As noble Lords will be aware, the purpose of the HIPC initiative is to help these 40 or so countries achieve overall debt sustainability, thereby enabling them to exit from the debt rescheduling process. It engages the international community, including all creditors, in a concerted and co-ordinated exercise to reduce a country's debt to a sustainable level. The concept of "sustainable debt" is an important one, not least because the often promoted total debt forgiveness—the "big bang"—is so fraught with difficulties and dangers for debtors and creditors alike. The problem about a one-off total write-off is that it assumes the creditors will continue to be available if and when needed to maintain any necessary flows of capital to the original debtor countries. That may not be the case.
Furthermore, international institutions may find themselves down-rated in the capital markets as the result of a total write-off, which adds to the cost of their own borrowings, the higher cost being passed on to the new borrowers. With official aid levels sinking steadily and with serious uncertainties about the sustainability of the high levels of private capital flows, to lose access to official flows on reasonable terms would be unfortunate to say the least.
Having said that in favour of the HIPC framework for debt relief over the big bang approach, improvements in the HIPC initiative are clearly needed. I greatly welcome Jubilee 2000's campaign to keep up the pressure on this matter, even though I take issue with some of its proposals. I take issue with some but by no means all because the coalition supports a number of principles that underpin the HIPC initiative, in particular the objective of debt sustainability and the acceptance finally by multilateral financial institutions of relief for their own debtors.

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The Jubilee 2000 coalition is right to call for a speeding up of the HIPC process. It is certainly none too encouraging that at present, after Uganda, only Bolivia, Guyana, Burkina Faso and Mozambique are set to obtain relief by the end of the century. The six-year performance period needs to be cut, even though some flexibility is already built into the process. I agree with Oxfam and others that we need to lower the threshold at which debt is deemed unsustainable. The rule of thumb that a nation's debt is unpayable when it totals more than two and a half times its export receipts was appropriate to the case of middle-income countries of Latin America but not, in my view, to the weaker economies of sub-Saharan Africa, where infrastructure and social expenditure needs to be a substantially higher proportion of GDP.
I very much welcome Her Majesty's Government's efforts at the G8 Birmingham Summit which led to the G8 signing up to an albeit rather less ambitious Mauritius mandate target than originally proposed by the Chancellor of the Exchequer last September. But it was a step in the right direction. I also applaud the British-inspired decision to facilitate debt relief for some seven post-conflict countries. However, the G8 could and should have gone further in modifying the HIPC initiative. Japan, a country for whom debt forgiveness is not a happy concept, is of course in a major crisis and Germany has borne and still bears the huge financial burden of reunification. But Japan's crisis will end and Germany's reservations over further debt forgiveness sit a little uncomfortably with memories of the extensive debt forgiveness afforded to her in 1953.
One further issue to which the noble Viscount, Lord Brentford, referred needs to be addressed. It is the deep and regrettable reluctance of some G8 countries to allow the IMF to sell gold to help finance the debt initiative. Perhaps my noble friend the Minister will tell us whether Her Majesty's Government still feel that this is a path worth pursuing.
To sum up, the HIPC initiative provides a reasonable framework for achieving sustainable debt levels but it needs reforming in order to match the urgency and scale of the debt crisis plaguing so many poor countries. It will, I believe, serve them better than a risky one-off write-off with all its uncertain consequences. An HIPC initiative revamped to do the job faster and less painfully will require consensus amongst creditor nations. That is what we should be striving for.
As my right honourable friend the Prime Minister said when he reported back to Parliament on the debt discussions at the G8 Summit:
"This is a vast and complex issue which cannot be solved overnight. And we have to mix realism with our idealism".
8.11 p.m.
Lord Hardinge of Penshurst: My Lords, I thank the noble Viscount, Lord Brentford, for introducing this important subject and I congratulate the right reverend Prelate the Bishop of Manchester on his eloquent and notable contribution.
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I am the businessman to whom he referred, who goes seeking trade. I would like to look a little beyond the immediate horizon. Let us assume that things go reasonably well with the current debt relief plans. These are basically an essential damage limitation exercise, but what do we do next?
The history of lending to poorer nations is not particularly encouraging. At present sub-Saharan Africa has accumulated nearly a quarter of a trillion dollars' debt. According to my back-of-the-envelope calculation, this has increased by about 30 times, after taking account of inflation, in the last 30 years. Unforeseen circumstances such as wars and natural disasters have clearly had an impact. However, leaving these aside, it is fair to say that in many cases the assumptions made about the borrowers' ability to service this debt were optimistic or even heroic.
It is clear that over the coming decades resource flows will be necessary on a substantially greater scale than in the past if there is to be any prospect of achieving the targets set out by the Government and others. This will inevitably be a mixture of public and private funding, aid and loans. Whatever their nature, future transfers will have to perform considerably better than past ones.
The HIPC initiative sets out a framework designed to achieve this but some concerns remain. In particular the levels of debt deemed to be sustainable have been set too high and the debt relief provisions have been drawn too narrowly. I appreciate that both this Government and the last have been on the side of the angels in this matter—they have also been on the side of the Bishops—and I make these comments to encourage more of the same, not to criticise. This is an area where realism and generosity pull in the same direction.
The main issue that I want to address is that of wealth creation. Anyone who visits poor countries—even not very poor countries—becomes aware of the desperate ingenuity and entrepreneurial energy displayed there, usually crippled by a terrifying lack of resources and often by bureaucratic obstacles as well. These energies are sometimes necessarily, on a microscopic scale. My daughter found that someone had started to clean out her ears when she was not looking. This is funny in a way but it is also sad. The entrepreneur would probably have found a more productive outlet for his ingenuity if his capital resources had stretched beyond a cotton bud.
However, even if they had, he might still have found an army of people apparently dedicated to preventing wealth generation. Anyone doing business with developing countries will be familiar with the kind of bureaucratic hurdles that often exist there and which, whatever their immediate justification, divert and distort productive effort. There have been improvements in some of the poorest countries—Mozambique, for example—but there is still a long way to go. This is a key policy area in ensuring debt sustainability.
So, wherever the quarter of a trillion dollars went, it does not seem to have had much effect on the productive sector of the local economies. It would not be quite true to say it had vanished. Crumbling monuments to it can be seen here and there, dotted around amid the little markets, farms and workshops on which the future of the peoples concerned ultimately depends.

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This lack of impact is not inevitable although correcting it will require detailed persistence over many years. The process arising from the present relief measures will need to be continued and refined. New frameworks for transfers will need to be developed. I think we need to do much more in the future than in the past to monitor the effectiveness of programmes and to establish best practice, by quantitative studies where possible.
G.K. Chesterton referred to
"Lending the poor that funny cash
That makes them poorer still".
Creditor nations have done quite a lot of that over the years. The HIPC initiative lays most emphasis on the debtors achieving conditions for sustainable development, but the creditors have quite a lot of work to do as well.
8.17 p.m.
The Earl of Sandwich: My Lords, the profile of international debt has risen considerably in the past year and it is to the credit of the British presidency that it was so high on the agenda at Birmingham. The positive role of the Jubilee 2000 campaign, thanks to a broad spectrum of churches, trade unions and other interests, is well known. Equally remarkable has been its effect on government and its ability to keep Ministers up to the mark.
Rarely has a lobby on overseas development received such all-party support, truly reflecting the strength of public feeling. There is a paradox. Many support aid and overseas development in principle but it seems that many more people are appalled by the spectre of debt on top of poverty, of a country already on its knees required to repay its loans. As we try to visualise the condition of people struggling to meet daily needs, it is not just an academic discussion; we are experiencing a human story of Dickensian character but on an international scale.
For many in the aid agencies the paradox goes even further. Debt relief is being paraded as a solution, a new form of overseas development substitute, another generous gesture from the high table. We would like to do more, the official argument runs, but sustainability means greater conditionality, democracy and accountability. These days we have to be more hard-headed. We must not throw good money after bad. We cannot help a man when he is down, only when he is trying to stand up.
These arguments may sound good around the boardroom table and they certainly apply to regular concessional lending. They are not appropriate to the most indebted, post-conflict countries, many of which have passed through tragedies not of their own making, presided over by tyrants whom we in Europe often supported with arms and inappropriate prestige projects. Others accumulated debts through borrowing after the unforeseen collapse of commodity prices in the 1970s. Have we sunk so far as aid donors that we now even describe relief of unpayable debt as a new form of aid?
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These economic crises have also been major human catastrophes and there is, unfortunately, no Marshall Plan to deal with them. I am one of those who would like to see a much greater effort by DAC countries well beyond debt relief. Nowadays governments like to see beneficiaries as business partners. They are our business partners—they supply our needs and we supply theirs. Is it not time that we treated them as equals and traded more fairly with them, helping them to a more stable government, instead of blaming them for disasters which are often beyond their control? The Brandt Report was all about interdependence, but I fear that we have not come up to Herr Willy Brandt's expectations.
Mozambique is a particularly frail democracy which has tremendous economic potential. Its debt relief is minimal, amounting to less than 50p per head per annum. Through the HIPC initiative we are merely papering over the cracks, to lay a few small paving stones, not the foundations needed over many years, not providing development aid on the scale which is really required. Forty-one countries are classified as heavily indebted. Most have a 1993 present value of debt to exports higher than 220 per cent.
The thresholds are much too high, as has been said. Because of the stiff criteria only half a dozen of those countries are due to receive relief, and of those only Uganda has reached completion point. The G8 said last month that all eligible countries would enter the process by 2000, but it is a painfully slow process. Uganda will owe 190 million dollars in debt service this year alone, of which HIPC will pay only 20 million dollars—less than one dollar per Ugandan.
I hope to visit Uganda in two months' time to see the benefits of debt relief for myself. They will not help the million primary school children still not in school. Some countries will have to wait several more years. Others have to cling to the hope that they will qualify for relief in the future.
It is true that this Government are trying to move things along. Under the Commonwealth umbrella, donors are to accelerate the process, especially for post-conflict countries whose completion point is 2003, which may now qualify for faster relief for exceptional needs.
I have studied the factsheets and I understand that some countries qualify for additional assistance for social needs such as health and education. However, this is linked to the ESAF process, which is far from having been proved to be effective as a visible benefit for the poor.
Finally, there is no point in our complaining about the stinginess of other DAC members. As the noble Lord, Lord Grenfell, put it during a recent Question, we are on rather shaky ground when we seek to persuade other countries to increase their debt relief. The noble Lord, Lord McIntosh, who is to reply, seemed to concur when he said:
"It is necessary for us to pay our share in the aid programme ".—[Official Report, 18/6/98; col. 1681.]
If we pay our share of the aid programme, that is encouraging news, because we are even using our aid funds now to support debt relief, which normally comes

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out of Treasury funds. The famous expenditure review is nearly upon us. Can the Minister, who is sympathetic to these problems, whisper to us the date when we can take our place at the DAC top table and return to a real aid programme?
8.22 p.m.
Lord Redesdale: My Lords, the noble Earl concluded on a tricky point for the Government to answer in a debate such as this. I thank the noble Viscount, Lord Brentford, for initiating the debate. A small and happy band of us raise this subject regularly. I welcome the right reverend Prelate to these debates. I hope that he will be a regular participant. Although the noble Lord, Lord McIntosh, has his Treasury cap on tonight, this is not an issue that should be answered only in an economic framework; it has moral and religious connotations.
I was surprised by the number of noble Lords who wanted to speak in the debate. One or two removed their names so as to give us six minutes in which to speak. The six minutes that I have this evening bear a close correlation to the amount of time the members of the G8 spent during their weekend in Birmingham studying the subject of international debt, there being so many other issues on the agenda.
Many of us had high hopes for that weekend. I went to the Jubilee 2000 Debt Coalition's chain around Birmingham, as did 50,000 plus other people. It bolstered my confidence in the fact that this is a political issue when so many people were willing to take part, especially from the Churches. Some good speeches were made at St. Martins in the Bullring. I was not asked to speak. My contribution was to help my noble friend Lady Williams to her place in the chain. I was asked whether I was a member of Special Branch. It was incredible to see the many people forming an enormous chain around Birmingham to illustrate that this is an issue which must be raised on the political agenda.
I was tempted this evening to go through many of the figures that are often quoted, but I thought that because the time was so short I should avoid doing so. I know that the Government have taken a leading role by putting forward the Mauritius mandate. The previous government and this Government have tried hard. I heard many arguments at Birmingham about why debt forgiveness is impossible. It occurred to me to ask: is it possible to reduce the debt by 2000? The Asian financial crisis has shown that the international community can mobilise billions of dollars at short notice if the event is seen as a crisis. If it is seen as a financial crisis that could affect our own economic well being, the money can be found. It could suddenly pour into Africa. However, at the moment that is not seen as a crisis, and I find that depressing.
The Minister will mention HIPC. The countries that are eligible for HIPC will not benefit in the immediate future. It will be a number of years down the line. Only six countries have entered HIPC: Uganda, Bolivia, Guyana, Burkina Faso, Cote d'Ivoire and Mozambique. Only the first three of those will reach their completion
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points and receive debt relief this year. Mozambique and Côte d'Ivoire and Burkina Faso will not benefit until 1999 and 2000 respectively. Mali is still under consideration, with a possibility of a 1999 or 2000 completion point. To stress the point made by the noble Lord, Lord Grenfell, we look further into the distance. In 2001, Zambia, Ethiopia, Guinea Bissau and Mauritania can look at joining the club.
In 2002, Madagascar, Niger, Nicaragua, Tanzania and Sao Tome could do so. In 2003, or beyond, Congo, Burundi, and the most depressing of all, Rwanda, could join. Is it not possible that there might be genocide before that because of the unsustainable debt and the economic crisis taking place in Rwanda? How can we talk about conditionality? If we were to introduce some of the structural adjustment reformed conditionality that is placed on many African countries, most western governments would immediately fall.
I have been in African countries where people are suffering. I have seen the effects of malnutrition. That is something one sees all too often and to which one almost becomes immune. The highly indebted poor countries initiative needs to be reformed. I shall leave the Minister with some suggestions. When the Government look again at the HIPC perhaps they can provide earlier debt relief, deeper debt reduction, push for new measures for determining debt sustainability, and consider the possibility of delinking eligibility for benefit under the HIPC from compliance with IMF reform packet programmes. Perhaps they can look at establishing a new poverty reduction window in the HIPC framework. That could state that the reduction of poverty would lead to debt relief of greater restraint. That has to be in line with the Government's White Paper.
I conclude with one question. Has further progress been made in respect of Rwanda? That country is teetering on the brink and debt relief might pull it back from the edge.
8.30 p.m.
Baroness Rawlings: My Lords, I, too, should like to thank the noble Viscount, Lord Brentford, for initiating this most interesting and informative debate on a topic of great moral significance. It is a fine example of your Lordships' House at its best and—dare I mention it?—all the Peers who have spoken so far, save for the right reverend Prelate, are hereditary Peers.
Basil Hume, the Archbishop of Westminster, made a moral point clearly in an article in The Times:
"Unpayable debt has become directly linked with terrible suffering".
That was stressed clearly in the maiden speech of the right reverend Prelate the Bishop of Manchester. From these Benches, we share the moral concern of the Jubilee 2000 campaign. By calling for a one-off cancellation of the sustainable debt owed by the world's poorest countries, it followed biblical tradition. Is not cancelling debt an appropriate way to celebrate the second millennium since the birth of Christ? Certainly it is a more fitting memorial than the advertisement operation to which the Millennium Experience is being reduced.

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We share the aspirations that fire the campaigners. We do have an outstanding record on debt relief. We wrote off £1.2 billion overseas development assistance loans by converting them to grants. The previous government gave the lead in bringing about international agreement on debt relief. On the initiative first of my noble friend Lord Lawson and later of my right honourable friend John Major, agreement was reached within the Paris Club on terms allowing the reduction of debt by two-thirds. Following again a British initiative, the IMF and the World Bank launched the HIPC initiative. As Camdessus said, this is an enormously precious baby with a horrible name.
The current administration is building on the achievements of the Conservative government. We support the Government in pursuing these policies. However, we are disappointed by the results achieved by the G8 meeting in Birmingham. We praised the Government for achieving agreement on the Mauritius target—that all eligible HIPCs are at least in the debt relief process by the year 2000—and the granting of interim relief wherever necessary. However, why did the summit fail to enlist the support of Japan and Germany to go further?
We on these Benches join the noble Lord, Lord Grenfell, in agreeing with the Prime Minister that:
"the issue is vast and complex, and it cannot be solved overnight—we have to mix our realism with our idealism. For debt relief to be effective, recipient countries must be committed to policies that ensure that the benefits reach the poor".
The Government accept that the promotion of good government is a vital necessity for development. Do the Government also accept that strict good government conditions are to be closely linked to writing off debt? I am inclined to agree with the quotation from G.K. Chesterton, given by the noble Lord, Lord Hardinge.
Good government entails a number of fundamental elements, including an efficient public administration. The importance of reforming public administration cannot be overstressed. I am afraid that I disagree with the noble Earl, Lord Sandwich, even though I have great respect for his vast knowledge on this subject. Uganda is a case in point. It was ravaged by more than 10 years of ruthless despotism, war and AIDS. Under the enlightened leadership of Museveni since 1986, the country has been transformed. It undertook an extensive programme of liberalisation, privatisation and property restitution. It put into place a quasi-democratic constitution. Its parliament is vigorous; its courts strive to be independent; and its press is remarkably free. As a result, the country is an island of relative stability at the heart of the troubled region. Its economy is catching up at a remarkable rate and foreign investment is growing.
Appropriately, Uganda is the first HIPC initiative beneficiary and will receive relief representing a reduction in its debt by about 20 per cent. However, debt relief is only an element of a wider strategy. The Ugandan Government are pursuing a programme of further social and economic reform. Even here, the model child of the HIPC, reform efforts and development may be undermined by an inefficient public administration. Corruption and political
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interference also burden the population, diverting funds from the fight against poverty; discouraging both domestic and foreign investment; and therefore hindering the creation of much needed jobs.
This problem is much more acute in less virtuous countries. Is the government action, either bilateral or through international agencies, sufficient to strengthen public administration in HIPCs? I look forward to the Minister's answers.
8.36 p.m.
Lord McIntosh of Haringey: My Lords, the whole House will be grateful to the noble Viscount, Lord Brentford, for raising issues of such profound importance, not only to us but to many millions of people around the world. I congratulate him not only on his introduction but also on the way in which he has attracted many speeches from those who have a keen understanding of the issues and personal experience in the third world. Notable among them is the right reverend Prelate the Bishop of Manchester who clearly understands the subject structurally and deeply and who spoke of his experience in Africa and Pakistan in a very effective speech.
During the recent inquiry of the International Development Select Committee into debt relief, the Chancellor of the Exchequer described the issue as a moral as well as an economic one. That view was echoed by the right reverend Prelate and by the noble Lord, Lord Redesdale. The debate has confirmed the view of my right honourable friend.
In responding to the debate, I need to address two fundamental questions about debt relief. First, what is necessary for debt relief to be effective in achieving the two wider goals of securing sustainable development and reducing poverty in the world's poorest countries? Secondly, why is unilateral debt relief by the United Kingdom not useful, as I believe it is not? In addressing these questions, I believe that I should demonstrate the importance and usefulness of the HIPC initiative as a way of tackling third world debt. I acknowledge the criticisms that have been made of the initiative as regards the qualifying periods and the debt exports measure which is used by the initiative.
Debt relief is important because it can create a climate for future investment and growth, as the noble Lord, Lord Hardinge, said. It can release resources for essential spending in areas such as health and education in poor countries. The noble Earl, Lord Sandwich, made that point. However, debt relief is not an end in itself and it is important to recognise that. The final goals must be the sustainable development of the world's poorest countries and the eventual eradication of poverty. Removing a country's unsustainable debt burden may be necessary to do this, but it is far from being a sufficient remedy.
In order to be as effective as possible, debt relief must be accompanied, first, by economic and social policies in the debtor countries that are likely to lead to sustainable development; and, secondly, by mechanisms to ensure that all new lending goes to productive programmes and is not wasted on excessive military

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expenditure or prestige products. I make those points in relation to the second and third questions asked by the noble Viscount, Lord Brentford. I shall deal later with his first series of questions. He queried whether the six-year threshold for HIPC is too difficult for many countries to achieve. I acknowledge that in the early years of the HIPC initiative, it means that very little appears on the ground. It has been rightly said that only Uganda has qualified so far.
But the need for sustainable, economic and social policies has been referred to by a number of noble Lords this evening, even when they were arguing for a more relaxed view of HIPC conditions. The Government really feel that although, of course, we should always argue for extra relief wherever possible, sustainable improvement is a necessary precondition.
Similarly, the noble Viscount rightly said that the money must go to those most in need. We must have assurances that the money is not being wasted on military expenditure and prestige projects. That is why the Mauritius Mandate stated that the UK would provide export credits to HIPC countries only for productive expenditure while also seeking international commitment to such a policy.
One positive outcome from the summit meetings in May was agreement by G8 on that point. It is crucial that we do not reward bad performers when it would only encourage further waste and corruption leading to money from debt relief never reaching the poor. As the noble Lord, Lord Hardinge, said, moral responsibility extends to debtors as well as to creditors.
One-off reduction of the debts of poor countries would not provide a long-term solution to their problems. What is required is the removal of their unsustainable debt burden together with programmes of economic and structural reform and the continued commitment of the creditor countries to provide new money for productive purposes.
The second question that I set out to address is why it would not be useful for the United Kingdom to give unilateral debt relief to the world's poorest countries. The first part of that answer is that unilateral debt relief by the British Government alone will not allow those countries to reach the levels of sustainable debt which will in turn make possible sustainable development. The noble Viscount, Lord Brentford, made the valid point that our own status as a creditor is much smaller than that of many other countries and is towards different countries from those which are most in need in many cases.
The second part of the answer is that because the level of debt relief is agreed multilaterally, if the UK were to go it alone, the only benefit would be to other creditors. But that does not mean that the British Government cannot act usefully to try to solve the problem of international debt. On the contrary, there is much that the British Government can do and have done to provide a lead in establishing debt relief mechanisms and then to ensure that they work as well as possible.
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In September, the Chancellor made a speech at the Commonwealth Finance Ministers' meeting which became known as the Mauritius Mandate. The speech set targets for the implementation of the HIPC initiative by the millennium—targets that the Chancellor has challenged the international community to meet.
The mandate calls for all countries that are likely to be eligible for debt relief under the HIPC initiative to have embarked on the process of securing that relief by the year 2000, and for three-quarters of those countries to have received firm decisions on the level and timing of relief that they will receive. I hope that the noble Viscount will forgive me for not reading out a list of countries in response to his specific question. That is the answer which Her Majesty's Government make. Clearly, those targets need full commitment from everybody concerned.
The Government have striven to obtain international agreement to the Mauritius Mandate targets since they were announced last September and under our presidency of the G8 there has been considerable success. During the recent summit meetings, culminating in the Birmingham summit, the G8 agreed to many of the Mauritius Mandate proposals, particularly the speedy and determined implementation of debt relief to more countries under the HIPC initiative. The summit urged all countries that are eligible for debt relief to embark on the process of securing relief by the year 2000.
However, we went further. At the G8 Foreign and Finance Ministers' meeting before the Birmingham summit, the Chancellor urged G8 colleagues to adapt the HIPC initiative to allow a special group of countries—that is post-conflict countries—to gain the resources necessary to rebuild their economic and social infrastructure as quickly as possible to minimise the chances of a return to conflict. The G8 agreed in Birmingham that work should be done to adjust current debt relief mechanisms to the needs of post-conflict countries. The Prime Minister has now written to the IMF and the World Bank to urge them to take that work forward. I do not have time to set out the mechanisms which we propose but it is clear that if we adapt our debt relief mechanisms in those ways we can provide quicker and greater resources from the international community for post-conflict countries.
Alongside the Mauritius Mandate, the Government have taken full part in the relief of export credit debts in the Paris Club, helping to provide last month a debt reduction of 67 per cent. for Senegal. I am afraid that I misunderstood the nature of the questions of which the noble Viscount warned me. I thought he was referring to the way in which we counted them in our accounts. Therefore, his very interesting questions about capitalisation, project cost sharing and that to which my noble friend Lord Grenfell referred—the possibility of the IMF selling gold—must be dealt with, not in this speech, bearing in mind the time available to me, but in a letter which I promise to write to him.
The Government have shown their determination to ensure that the HIPC initiative does not falter. They took an international lead when problems arose over

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financing debt relief for Mozambique and, as the noble Baroness, Lady Rawlings, said, we have cancelled £1.2 billion in old aid loans over the past 20 years.
But we have also played our full part in the debt relief work of the international community. The progress made at the Birmingham summit was only the latest evidence of the concern of creditors to provide debt relief. Indeed, over the past two decades, the Paris Club of bilateral creditors has rescheduled or reduced bilateral debts of more than £300 billion.
The HIPC initiative itself has also had a significant impact. To date 3 billion dollars has been pledged by the international community to six countries under the HIPC initiative, and several others are well down the road.
I wanted to conclude by repeating the answers to the two important questions about sustainable levels of debt and the undesirability of unilateral action by this country but I do not have time to do that. Suffice it to say that good progress has been made. The international community has worked together. Three countries have exited from the debt relief process under the HIPC initiative so far: Benin and Senegal have received debt stock reductions on Naples terms, having been shown not to require HIPC debt relief; and Uganda, as has been said, completed the full process in April, only 18 months after the launch of the new initiative.
By the new millennium several other countries will also have completed the process and it is our hope that the Mauritius Mandate targets will also have been met and that all countries eligible for HIPC relief will be firmly on the road to securing their debt relief.
I pay tribute also to the work of Jubilee 2000 and all those campaigners who have kept this issue in the public mind. I hope that what I have been able to say has indicated that the Government have a realistic but at the same time enthusiastic approach to tackling those problems.

Government of Wales Bill
Consideration of amendments on Report resumed.
Schedule 3 [Transfer etc. of functions: further provisions]:
[Amendment No. 36 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 37:
Page 83, line 19, leave out from ("culture,") to end of line 21.
The noble Lord said: My Lords, in speaking to Amendment No. 37 I shall speak to Amendments Nos. 38, 228, 231, 232, 233 and 238, which are all within the same group. This set of amendments deals with the definition of Wales in the Bill and in particular the extent to which it includes the sea. The Interpretation Act of 1978 defines Wales by reference to the counties created by the Local Government Act 1972 in Section 20. As a result, the definition of Wales does not include the sea adjoining Wales. Paragraph 2 of Schedule 3 to the Bill currently provides for a ministerial function in relation to an area of sea adjoining the coast of Wales
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to be regarded as exercisable in relation to Wales, but this does not confine the reference to the territorial sea and only applies for the purposes of the transfer of ministerial functions to the assembly under Clause 22.
Amendment No. 232 inserts a definition of Wales in Clause 155 to include,
"the sea adjacent to Wales out as far as the seaward boundary of the territorial sea".
This applies to all references to Wales in the Bill.
Amendment No. 233 gives an order-making power to determine for the purposes of the definition of Wales any boundary between the parts of the sea which are to be treated as adjacent to Wales and those which are not. This is necessary in the case of the Dee and the Severn estuaries and the Bristol Channel, where the coast of Wales is less than 24 nautical miles from the coast of England. The definition of the parts of the sea adjacent to Wales may be included in an Order in Council under Clause 22 or an order made by the Secretary of State under Clause 155.
Amendment No. 231 provides for an order by the Secretary of State to be subject to the affirmative resolution procedure, as is already the case for draft orders under Clause 22. We anticipated the need for provisions in the Bill about matters relating to the sea because the Secretary of State has certain powers in relation to fisheries conservation and management, marine emergencies, the protection of the human food chain and the protection of the maritime environment. These amendments simply enable the seaward areas for which the assembly will have responsibility to be clarified and therefore defined.
We thought that it was right to limit the responsibility to the territorial sea to 12 nautical miles from the coast. It was also decided that the Bill should permit certain functions exercised beyond that limit to be made subject to a requirement to consult the assembly. That is the point of Amendment No. 38. They are largely functions concerned with the disposal and abandonment of oil and gas installations in Welsh-controlled waters.
As with the territorial sea adjacent to the coast of Wales, it is necessary to have the power to determine what are the boundaries of Welsh-controlled waters. This can be done by means of an order under Clause 22 or Clause 155, but again, I stress, subject to the approval of Parliament via the affirmative resolution procedure. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for his explanation. I now rise only to say to him that he has in fact answered the questions I was going to ask, and so I am grateful for what he has said.
The Earl of Balfour: My Lords, I should like to ask just one question, because I am sure we are all very concerned about the smuggling of illegal drugs and so on. I hope that Customs and Excise, which would be dealing with such matters, is basically under United Kingdom control and its powers would not necessarily be delegated to the Welsh assembly in respect of the protection of these waters against smuggling and so on.

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It concerns me that the coastguards and Customs and Excise will continue to be managed by the United Kingdom Parliament.
Lord Williams of Mostyn: My Lords, I understand the noble Earl's concerns, but the powers that are intended to be devolved to the assembly are simply those powers which the Secretary of State presently has, and police powers, Customs and Excise powers and powers of the kind the noble Earl has in mind are not presently under the control of the Secretary of State. They are—wearing my other hat—powers that are still within the Home Office or within Customs and Excise.
The Earl of Balfour: My Lords, I am much obliged to the Minister.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 38:
Page 83, line 47, at end insert—
("Functions exercisable beyond the territorial sea
.—(1) The power conferred by section 22(1)(c) includes power to direct that any function under—

(a) Part II of the Food and Environment Protection Act 1985 (deposits in the sea), or

(b) Part IV of the Petroleum Act 1998 (abandonment of offshore installations),

so far as exercisable by a Minister of the Crown in relation to Welsh controlled waters shall be exercisable by the Minister only after consultation with the Assembly.
(2) In this paragraph "Welsh controlled waters" means so much of the sea beyond the seaward boundary of the territorial sea as is adjacent to Wales.
(3) The power conferred by section 22(3) includes (in particular) power to determine, or make provision for determining, for the purposes of the definition of "Welsh controlled waters" any boundary between—

(a) the parts of the sea which are to be treated as adjacent to Wales, and

(b) those which are not,

including power to make different determinations or provision for different purposes; and an order under section 155(1A) may include any provision that by virtue of this sub-paragraph may be included in an Order in Council under section 22.").
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 39:
Page 85, leave out lines 19 and 20 and insert—
("(1) This paragraph applies where a function is exercisable by a Minister of the Crown—

(a) only with the agreement of, or after consultation with, another Minister of the Crown, or

(b) only with the authorisation of Parliament or either House of Parliament.").

The noble Lord said: My Lords, this amendment provides for the disapplication of provisions in certain Acts: for example, the Ministry of Transport Act 1919 and the Industrial Development Act 1982, where action can only be taken by the Secretary of State if authorised by a Resolution of either House or both Houses of
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Parliament. The Bill at present would not disapply those provisions and so this amendment widens the scope of paragraph 8 of Schedule 3 so that it operates to disapply not only the requirements for ministerial consultation and agreement but also parliamentary authorisation requirements. It would not, I suggest, be appropriate to subject the assembly to the latter requirements because your Lordships have already agreed that other forms of ministerial and parliamentary approval should not apply to the assembly. This is therefore essentially a tidying-up amendment. I beg to move.
On Question, amendment agreed to.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 40:
After Clause 26, insert the following new clause—

CONCORDATS WITH ASSEMBLY
(" .—(1) No minister of the Crown or Government Department shall enter into a concordat with the Assembly or a committee of the Assembly unless a draft of the concordat has been laid before each House of Parliament.
(2) Any such concordat may be annulled by either House of Parliament.").
The noble Lord said: My Lords, although the word "concordat" featured in the paper entitled A Voice for Wales it does not appear anywhere in this Bill and yet there is no doubt about the importance of the concept. It is to be the practical means by which the unity of the United Kingdom is maintained, and of course concordats are the subject of Amendments Nos. 40 and 42.
The Secretary of State for Wales, Mr. Ron Davies, in a Written Answer dated 27th February stated that the White Paper noted that the assembly would need to work in close partnership with those Whitehall departments responsible for developing policies and preparing secondary legislation for England on matters which in Wales would be the responsibility of the assembly. It also noted that the assembly's officials and their Whitehall counterparts would need to consult each other on a range of issues. The basis of the consultations would be set out in concordats.
Mr. Davies went on to say in his reply that the Government had produced guidance, setting out the principles which might govern the concordats, and placed copies in the Libraries of both Houses. I do not intend to comment in detail on the guidance, but your Lordships may wish to know that according to the document good working relationships currently exist between the Welsh Office and other departments of Government, and that such relationships are vital to the effectiveness of Government and serve the interests of the public.
Following devolution, the need for co-ordination will remain to take account of the programmes for implementing new legislation and shared interests in matters such as European Union business. It is clear that concordats are to be all-important links between central government and the assembly's executive and, for that matter, the Scottish parliament's executive. Yet we are told that concordats will normally be signed at senior official level only, except when they deal with

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politically sensitive issues when they might be signed by UK Ministers and assembly secretaries. They are all likely to be published.
As these concordats will increase in number and be the linchpin of co-operation between our governmental institutions post devolution, is it not appropriate that they should at least be laid before Parliament? Their contents must be known to and approved of by the assembly in the case of Wales; indeed, we gleaned that much from the remarks made by the noble and learned Lord the Solicitor-General, on Second Reading. Parliament should surely have the chance to consider them as well as the assembly. Again, that is one of the main purports of our proposed new clauses.
It may be argued that concordats already exist and that they are non-statutory. The best known is probably the Barnett formula described as,
"a non-statutory policy rule based on mutual understanding between parties within the policy network, the implementation of which is subject to both sides observing the behavioural 'rules of the game'".
There is also the DTI's most interesting Concordat on Inward Investment, which is broad in its scope and which provides for the resolution for disputes at official level, Cabinet Office level and, ultimately, through discussions between Ministers. But the key point is that whereas concordats have been fairly rare to date and of limited importance within a unitary government, they are now to increase in number and significance and become an important instrument of government.
I am sure that all of us who have had some governmental experience can give instances of how we have behaved when acting for other departments. I well recall an occasion when I visited a company in Japan. I was told that it had a great love of and interest in Wales, especially a part of it called Lanarkshire—whereupon, of course, I had to put on my best friend's Scottish hat and sing the praises of Lanarkshire. No concordat or understanding was necessary between myself and a Minister at the Scottish Office: we knew what was expected of us and what we were meant to do. However, in the future, I imagine that that kind of situation will be covered by a form of agreement by way of a concordat.
In my view, it would be totally wrong to bypass Parliament in this matter. Parliament really should know what is going on. The Institute of Welsh Affairs, which examined the issue after the publication of the White Paper, came out strongly in favour of,
"establishing in law the principle of concordats between the Assembly and the Whitehall departments".
The institute went further and said:
"It would be helpful, from the point of view of information and elucidation, for the Bill to contain a model of such concordats setting out the basic features of the relationship".
We have not had such a model. As I said earlier, there is barely a mention of concordats per se in the Bill. This is an important and obviously sensitive area. The success or failure of the devolution experiment may well depend upon it, together with the maintenance of the unity of the United Kingdom.
Our proposed new clauses are slightly different. In Amendment No. 40, the annulment could occur at any time whereas, as far as concerns Amendment No. 42,
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we are timed by the procedures relating to statutory instruments. That accounts for the main difference between the two clauses. I beg to move.
9 p.m.
Lord Thomas of Gresford: My Lords, the flaw in the amendments proposed by the noble Lord, Lord Roberts, seems to me to be the fact that they are far too legalistic. They are trying to set in stone agreements between the assembly and this Parliament, when those concordats should be flexible understandings between departments which are practical and readily capable of being amended.
Having made that criticism of the amendments, I believe that it is incumbent upon the Government to explain how they intend to make those concordats available for people to see so that they may understand what they are. In other words, there should be transparency. We should be able to know what arrangements are in place between the assembly and the Westminster Parliament. I look forward to hearing from the Minister the nature of those proposals.
It would be unfortunate if relationships were to develop between the assembly and this Parliament which remained secret and subject to speculation and rumour. That could give rise to problems either here or in Cardiff, which could easily be avoided by a transparent look at the arrangements.
Lord Crickhowell: My Lords, I have only one point to raise but it is an important one. Just before we adjourned for the dinner break, my noble friend Lord Mackay of Ardbrecknish, raised the crucial and absolutely vital issue of the manner in which European agricultural policy will be handled by the UK Government and by the assembly. Indeed, it is a subject to which we shall return when dealing with a later amendment.
I simply point out to the House that on 25th March in another place Mr. Ron Davies (at col. 618 of Hansard) said that all this was to be "covered in concordats". In other words, it is absolutely vital as regards the way in which agricultural policy and negotiations are to be handled that that should be a subject for concordats. Therefore, it seems to me that this is the kind of subject which should come before Parliament for explanation and probably for approval.
I take the point made by the noble Lord, Lord Thomas of Gresford, about being too legalistic. Indeed, when the noble Lord urges that we should not be legalistic, we must take the argument seriously. However, there are subjects of such profound importance, both for the United Kingdom and for the people of Wales, that it would be absolutely inexcusable if the agreements that had been negotiated were not known to Parliament and to the assembly, fully understood and out in the open. I believe that on subjects of that importance the agreements should receive the approval of both bodies.
Lord Elis-Thomas: My Lords, I am impelled to speak on this matter by the strange form of language used by the noble Lord, Lord Roberts, when he

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described what we are about as a devolution experiment. Devolution is not an experiment; it is an experience. The experience of devolution which we are about, the process of change, is what these concordats are really about. I have considered these issues in some detail since the Committee stage. I now understand more fully the importance of not viewing concordats as statutory instruments. Therefore they should not be subject to the same SI procedure. These are publicly agreed relationships between levels of government. This is what quasi-UK federalism tastes of, if I may express it that way just after supper.
It is important that we should see these measures on the one hand as flexible instruments and on the other hand as instruments which, as it were, can be tasted as they are used. In other words, these are relationships; they are not necessarily textual documents which are analogous to subordinate legislation or instruments of law. Therefore I think it is important that they are not part of the procedure of statutory instruments in either this House or another place or in the assembly. On the other hand, they must be transparently understood procedures. Here I agree entirely with the noble Lord, Lord Crickhowell. I believe it is possible in our debates here to flag up how we can establish relationships which on the one hand have clear validity in terms of relationships of government but on the other hand are not subject to the detailed textual analysis in statutory terms that occurs with an SI.
Lord Williams of Mostyn: My Lords, I am most grateful to the noble Lord, Lord Roberts, for the thoughtful way in which he addressed this issue as it is a matter of great importance. In a sense he is quite right to say that although there are precedents, there are likely to be more concordats than in the past. I also entirely take the point made by the noble Lord, Lord Crickhowell—which was made earlier by the noble Lord, Lord Roberts—that Parliament should know what is going on. I reiterate what was said in our debate on 2nd June. We intend that virtually all concordats between the assembly and Whitehall will be published.
As regards the point on transparency, which was made by the noble Lord, Lord Thomas of Gresford, we intend that drafts will be available for scrutiny and comment. We do not want to hide anything. I can envisage some circumstances where an area is so delicate that one cannot necessarily publish its details in full. The noble Lord, Lord Thomas, was right to say that one does not want legalism because that makes one the servant of drafting and legal procedures. Concordats may need to be altered. They do not need to be as rigid as statutory instruments, as the noble Lord, Lord Elis-Thomas, said. We have come to the conclusion that concordats should not be statutory instruments or legal instruments, any more than the Barnett formula is. However, it is important that people should know what the arrangements are in order to be able to discuss them and to suggest improvements. There are bound to be alterations as time passes and circumstances change. I agree entirely with all noble Lords who have spoken.
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The concordats must be open, clear and available for the public to read and to understand. A commentary should be provided if necessary in appropriate cases.
I hope that I have been able to satisfy your Lordships that we want the concordats to be open. After all, the assembly must be trusted to carry out its developing work in a way which is appropriate to changing circumstances. The concordat is the way to do that. One does not need something set in law to obtain workable arrangements, as long as one bears in mind the absolutely essential principle that the measures should be publicly available for scrutiny and comment.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for that reply. I made a careful note of what he said about concordats. He said it was important that they should be open, clear and available to the public to understand. It seems curious that the Minister should say that but at the same time fail to ascribe any particular role to Parliament in either helping to formulate and finalise concordats or in interpreting concordats to the public so that they understand matters properly. There is no question as to the importance of the concept. My noble friend Lord Crickhowell referred to remarks made about the role of concordats as regards the connection between the assembly and Europe. His comments were sufficient to show how important they are.
The noble Lord, Lord Thomas of Gresford, referred to the need not to be too legalistic. I should point out that the first of our amendments is closely related to a Liberal amendment tabled at Committee stage. Perhaps I may remind the noble Lord of his remarks. He said:
"The way we have put it in this amendment is that any concordat that is entered into should be laid in draft before Parliament and then, but only then, should one side or the other think it necessary, will the matter come before Parliament on a Motion to annul it".—[Official Report, 2/6/98; col. 271.]
Therefore I do not think that we are being too legalistic. We are simply following the example set by the noble Lord. That said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 41:
After Clause 26, insert the following new clause—

CONCORDATS IN RELATION TO AGRICULTURAL AND ENVIRONMENTAL PAYMENTS
(" . The Assembly may enter such concordats as may be required with a Minister of the Crown or with the officials of such a Minister to ensure that those persons in Wales entitled to receive payments under European Community and national agricultural and environmental schemes are treated no less equitably than persons entitled to receive such payments in England.").
The noble Lord said: My Lords, this amendment follows the problems expressed in the previous two amendments, but it itemises a special but very real practical problem. In Committee. I raised the question of what happens when a concordat does not perform satisfactorily. I have tabled this amendment to try to persuade the Government of the need for a better system than has obtained over the past few years in relation to the payment of grants to Welsh farmers. Those farmers

765
have received their subsidies, be it the beef special premium or IACS payments, months later than their English counterparts. Naturally, that has caused resentment, to put it mildly. I do not really care who makes the payments. However, it concerns me that as the problem appears to be the outdated computer in Cardiff, time and money could well be spent on it whereas it might be cheaper and quicker to make use of a computer system that is in use, say, by MAFF. Having said that, I would not wish the regional Welsh agricultural department offices to be closed as they provide a very useful and valued service.
The amendment would oblige the assembly to tackle this long-running problem in any way it thought best. It would impose on the assembly a discipline: to be at least as quick in making payments to Welsh farmers as in making them to English farmers, which has not happened in the past. It would not allow the usual excuse that the Welsh computer was out of date, or whatever.
In short, the amendment would add a little more openness, as suggested by the noble Lord, Lord Elis-Thomas, and indeed by the noble Lord, Lord Williams. It would also add competition which I understand the Government are keen on. I expect the noble Lord will say that this problem is not relevant to the Bill. However, I assure him that it is very relevant to the average Welsh farmer. I beg to move.
Lord Williams of Mostyn: My Lords, I entirely take the point made by the noble Lord in his concluding sentence. There is a sense of grievance, which I know well, in relation to delays in payments attributable to out-of-date computer systems. However truthful that may be as an explanation, the reason why you are not receiving your cheque on time pales into insignificance compared with the blunt fact that it is not arriving on time. I therefore understand the noble Lord's concern and do not overlook it for a moment. I know from personal conversation that this has been a source of great worry and anxiety to the Secretary of State. One is inheriting a computer system which many would say is simply not up to the work.
The amendment goes much wider than the question of the computer. I had understood the width of his amendment to be that there ought to be a uniform system throughout the United Kingdom even after the devolved assembly takes power.
As the noble Lord said earlier this evening, I wrote to him on 24th June about various issues and put a copy of my letter in the Library. I cannot say that there will not be changes to support arrangements in the future. There are presently allowed variations in the level of support or variable rates for different areas of the United Kingdom. I accept, having heard the refined way in which the noble Lord puts his amendment, that he is focused particularly on a single issue. If that is the purpose behind the amendment, I have dealt with it so far as I can.
I do not believe that this amendment is the way to deal with late payments on a computer system. If the noble Lord wishes me to develop a broader reply, I am
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happy to do so. Perhaps he will indicate whether he wishes me to develop my sermon or whether I have dealt with the point he made, albeit not satisfactorily to him.
Lord Stanley of Alderley: My Lords, the noble Lord did not deal satisfactorily with either point. I would rather he dealt with the wider points I raised before supper when the amendment of my noble friend Lord Crickhowell came up.
In relation to the specific concordat point, I am not asking for it to be written in stone, as the Minister suggested. All I am saying is that I hope there will be some openness when things go wrong—they have certainly gone wrong in the past—and it is made clear that it is the assembly's fault, if I may put it that way. Alternatively, I hope that the assembly will be able to do something about putting right these long-running problems that we have in Wales. As I understand it, that would be where the concordat comes in, because there will be a concordat probably between the Welsh assembly and whoever is doing the nitty-gritty work of paying the grants.
Lord Williams of Mostyn: My Lords, I do not believe that a concordat will solve that problem. The noble Lord identified the problem as one of out-of-date computer technology. It seems to me that no concordat will be able to deal with that.
Where the assembly could be influential, however, is in raising the questions put forward by the noble Lord, applying political pressure to the first secretary and, if necessary, instigating a vote of censure or no confidence, subject to the usual standing order arrangements, in the assembly itself. That is the way to deal with late payments. I do not believe that something as specific as late payments—I do not overlook it for one moment—should be the subject of a concordat. I hope I have dealt at least clearly, though I know not entirely to the noble Lord's satisfaction, with this point.
Lord Stanley of Alderley: My Lords, I do not suppose the noble Lord will ever entirely satisfy me. However, the point he made is relevant.
I wanted to establish that, whereas in the past we seemed to be hitting our head against a brick wall and could not get anywhere, he made it clear to me and your Lordships that there will be a case for the assembly when things go wrong to "chase" the first secretary or whoever it is, to make sure that the matter is put right. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
Lord Crickhowell Lord Crickhowell moved Amendment No. 43:
After Clause 29, insert the following new clause—

ASSEMBLY REPRESENTATION AT COUNCIL OF MINISTERS
(". At any meeting of the Council of Ministers of the European Community at which matters relating to Assembly functions are to be considered, a member of the executive committee (established under clause 56) shall, with the consent of the Minister of the Crown leading the United Kingdom delegation, be entitled to speak and vote on behalf of the Assembly and of the United Kingdom.").
The noble Lord said: My Lords, we now return to the important issues that were raised by my noble friend Lord Mackay of Ardbrecknish on Amendment No. 34 before the dinner break.
Amendment No. 43 puts in statutory form what Ministers have said they want to happen. I shall speak also to Amendment No. 51, which concerns consultation and has the same wording that I tabled at Committee stage. I shall also refer briefly to Amendments Nos. 63 and 64, which the noble Lord, Lord Elis-Thomas, tabled and with which I have some sympathy. I look forward to hearing what he has to say. This subject has been debated previously but in detail only at a very late hour in this House. It is therefore right that we should return to it now.
At Second Reading, I made plain my serious anxieties about the Government's arrangements for dealing with European issues and about the idea being propagated in some quarters that Wales was likely to be better represented in Europe than it had been in the past. That proposition, at least as it applies to Scotland, was effectively demolished in an important speech by my noble friend Lord Lindsay during the Second Reading debate on the Scotland Bill. He spoke from a wealth of experience as both a Scottish and a UK Minister at Council of Ministers' meetings. He asked acute and important questions and he received no adequate response from Ministers, who at times, I have to say, appeared to be ill informed about the issue. There was also no adequate response to the queries and points of my noble friend Lord Mackay of Ardbrecknish at the Committee stage of this Bill. This amendment gives us an opportunity to discover from the Government exactly how they think Welsh and Scottish interests are to be represented and defended in Brussels. The same principles apply in each case.
In my Second Reading speech, I referred to the proposition that had been advanced that,
"with the agreement of the UK lead Minister, the relevant Assembly Secretary could speak to the agreed UK line in the Council of Ministers".—[Official Report, 21/4/98; col. 1059.]
In his reply, the noble and learned Lord, Lord Falconer of Thoroton, said:
"And why should they not do so…?".—[Official Report, 21/4/98; col. 1130.]
My amendment attempts to give the proposition a statutory foundation, a foundation that may prove to be significant if an assembly member, asked by the lead Minister to represent the United Kingdom view, was to be challenged in the Council about his right to do so for reasons that I will refer to later. What I want the Minister to explain in detail are the circumstances in which they could do so and I want him to give us some very clear answers to some very important questions.
As I pointed out in the debate which we have just concluded on concordats, the Secretary of State for Wales argued in his response to the debate in another place on 25th March that it was all a matter for concordats, which meant that he left the position totally obscure. His response was referred to in the debate on the Scotland Bill in another place, in the course of which
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Mrs. Margaret Ewing drew attention to the fact that representatives of the German Länder had represented German interests in the Council of Ministers on four occasions. This matter was referred to earlier today.
Mr. Tam Dalyell, as so often in the past on these issues, was well informed and helpfully filled in the details. He told those present in another place that the State Secretaries for Justice and the Interior and the Senator for Internal Affairs of Hamburg had attended a meeting on 28th/29th November 1996, and that on 16th December 1996 there was a meeting to discuss audio-visual and cultural affairs. Apparently, the Foreign Affairs Minister and the Minister President of the Rhineland-Palatinate attended that meeting. On 20th November 1997, the State Secretary for Education, Science, Research and Technology and the Minister for Culture of Hessen attended a meeting on education. Finally, on 24th November 1997, the Foreign Affairs Minister and the Minister for Education, Culture, Science and the Arts of Bavaria attended a meeting on culture. The House was informed that, although Länder ministers attended Council meetings on those four occasions, they were never the sole representatives of the German government. I also believe it to be the case that they were not the lead ministers on those occasions.
In the speech to which I have already referred, my noble friend Lord Lindsay said that, despite the innumerable hours that he had spent in and around Council meetings, he never met, nor indeed did he ever hear, any reference to the presence of a minister from Catalonia, or any Belgian or other devolved region.
Following the Maastricht Treaty, Germany added a new Article 23 to its Basic Law. I received a most helpful brief on the subject from the Library of this House. It informs me that that article provides that the decision of the Bundesrat is decisive where such a transfer of legislative competence affects the exclusive legislative competence of the Länder; and also provides that Germany may be represented by a member of a Land Government in the Council of Ministers when matters affecting the legislative competence of Länder are being discussed. Representation in Council by a Land Minister should take place in areas of exclusive competence of the Länder. I ask the House to note that point. The note goes on to say that that would include cultural matters, for example, where the federal government has no competence.
The note goes on to explain the special agreement of 1993 that covers the arrangements in Belgium, which are rather more complex than those in Germany. There the Council of Ministers meetings are divided into four categories, (A to D), depending on the relative importance of federal and regional competences in the area under discussion. Federal ministers' only may attend Type A councils. Regional ministers accompany federal ministers at Type B councils where there are shared competences, but the federal level is more important, but only the federal minister may vote. In the Type C councils there are shared competences but the regional level has a greater weight; both levels are represented but only the regional minister may vote. At

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Type D councils where matters within the exclusive competence of the regional governments are discussed, only regional ministers may attend and vote.
The Lords' brief also referred to a House of Commons research paper 97/126, which has this to say about the situation in Spain. I refer to it because the subject of Catalonia is frequently raised, not least by the noble Lord, Lord Elis-Thomas. Mrs. Ewing stated in the debate to which I refer that the Spanish Parliament had recently voted to guarantee the representation of Catalonia and the Basque countries at Council meetings on devolved matters. However, in response, the Secretary of State for Scotland, Mr. Donald Dewar, rather sat on that suggestion. He said that there is no right, as Mrs. Ewing suggested, for Catalonia, the Basque country, or any other region to be part of the delegation. One representative of the 17 provinces will be on the delegation and the great question is how the 17 provinces will decide who that person should be. I believe that the situation as regards Catalonia remains to be established one way or the other. It is important to note and clearly understand that in each of the cases that have been described the arrangements are those that arise from and are made possible by domestic law, domestic agreements or domestic practice.
I have been anxious to discover what rights and opportunities are provided for by European law and practice. I believe that the House will be as anxious as I am to know if each member country of the European Union has a free hand as to the manner in which it is represented.
The question that I put to others in the course of my inquiries and which I now put to Ministers is this. Can the UK lead Minister decide that a case can be presented by representatives of the Scottish Parliament or the Welsh assembly regardless of the views of other member states' ministers in the Council and regardless of any treaty obligation? My noble friend Lord Cockfield has given me a most useful note on the subject. He has referred me to the Treaty of Paris signed in 1951 and the Treaty of Rome which established the European Economic Community, signed in 1957. The English translation of the original of the latter document provides that,
"The Council shall consist of representatives of the Member States. Each Government shall delegate to it one of its members".
The phraseology was applied to all three Communities by the so-called "Merger Treaty" of 1967 and it survived right down to the Maastricht Treaty, officially called the "Treaty on European Union", which substituted the following words. Again, I ask the House to listen to them carefully. The treaty stated:
"The Council shall consist of a representative of each Member State at Ministerial level, authorized to commit the government of that Member State".
My noble friend Lord Cockfield observes that the critical point is the phrase,
"authorized to commit the government".
The "government", so far as the Union is concerned, is the Westminster Government. My noble friend says that he does not see how a member of the Welsh assembly or the Scottish parliament could commit the Westminster
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Parliament; nor does he think that the House of Commons in particular would be at all happy if the Government attempted to give those members such powers. My noble friend says that none of that would prevent a Minister taking along a member of the Welsh assembly or of the Scottish parliament as part of his delegation, but that there could be objections on the part of other members of the Council, particularly in view of the establishment of the Committee of the Regions. My noble friend questions whether at a meeting of EU Councils, covering subjects that fall within the competence of the Welsh assembly, a member of the executive committee of the assembly would be entitled not only to attend, but also to speak and vote as the representative of the UK Government.
The final point to note in all these relative positions is that representation is in any case confined to those subjects where there is exclusive competence. This is the dramatic moment when I lose my text. No, I have found it again.
I refer now to a comment made by Mr. Derek Prague in his pamphlet, Democracy in the European Union, which describes the nature of negotiations in the Council, a subject on which my noble friend Lord Mackay of Ardbrecknish has touched on a number of occasions. Mr. Prague observes that negotiations in the Council normally involve a great deal of give and take. That means that the efforts of national parliaments to control the concessions of their Minister, as he attempts to get maximum consideration in the Council for his government's view, are fraught with difficulty. It is extremely difficult to influence a Minster engaged in a fluid negotiation in the Council of Ministers. Even the national parliament best organised for the scrutiny of European legislation—surely Denmark's Folketing—must find it difficult to control its Minister in the last stage of a negotiation when Ministers are making compromise concessions to each other.
My noble friend Lord Lindsay made much the same point on 17th June when he asked some key questions which apply equally to the Welsh assembly. He asked, for example, that when the Council of Ministers goes into closed session and only member state Ministers are allowed to remain in the room, how easy would it be for devolved Scottish Ministers to stay with their Minister or Crown colleagues. The same question applies to Welsh representatives. My noble friend also asked whether Scottish Ministers would be confined to the public areas of the Council buildings and whether they would be allowed to access the Council buildings and the Council chamber as and when they wish, even when their assistance has either not been sought by a UK Minister or has actually been refused by a UK Minister. Those are important questions to which I should like to hear an answer tonight. One begins to understand why Mr. Dewar was so cautious in the Scottish debate on 30th March and why Mr. Ron Davies, in the debate on 25th March, and the noble Lord the Minister who dealt with this matter in Committee in this House were so reticent.
There may be a few subjects on which a Welsh assembly representative may speak but not vote; for example, cultural and language issues. But it is clear

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that on great political issues such as agriculture, which we have discussed in relation to a number of amendments this evening, and industrial aids or employment measures, the UK will continue to be represented by a Minister of the Government at Westminster who will both speak and vote for Britain as a whole.
Let us consider what will now happen in the situation created by this Bill. Discussions about the UK's negotiating position will no longer take place between Ministers of one administration involving civil servants who prepare and defend a departmental case and have shared loyalty and responsibility to the same government. No. There will be discussions between Ministers who have different and perhaps opposing interests and civil servants with differing loyalties. To take agriculture as an example, perhaps UK Ministers want to adopt a negotiating position on beef on the bone that seems likely to add to the immense problems that already face the farmers of Wales. There will be a huge temptation for the chief secretary of the Welsh assembly to take up a public position of outrage and dismay so that he can defend himself in the face of the assembly and his electors. There is likely to be tension and conflict.
There is sometimes a wonderful symmetry about events in this place. Twenty four hours after the noble and learned Lord the Solicitor-General spoke about representation and the ability of Ministers to speak, to which I have already referred, a Question was posed by the noble Lord, Lord Islwyn, about the current negotiations on the crucial matter of the allocation of regional aid to Wales and the Agenda 2000 package. Confronted with that Question, the noble Lord, Lord Clinton-Davis, said:
"I do not believe it would be helpful at this stage as regards the negotiations if I were to give further and better particulars of our negotiating position".—[Official Report, 22/4/98: col. 1154.]
Later, when pressed he said, at col. 1155:
"I have already indicated that I do not believe it to be helpful in what is a difficult negotiating position to single out specific parts of the United Kingdom".
When pressed further he said, at col. 1156:
"I have already indicated that it is not helpful at this point in the negotiations to embark upon a sectoral appraisal of the position. All these questions are bound to impact upon the Government's thinking. Representations arc made by all areas in the United Kingdom and we will listen to them".
Clearly, that is what will happen. UK Ministers will have to take up a position that represents UK interests. It is wholly desirable that the cards are kept face down on the table. But what happens to those who have taken part in the preliminary discussions? What will the first secretary do? He knows the negotiating position and believes—perhaps like my noble friend Lord Stanley of Alderley—that it will be catastrophic for Welsh agriculture. Will he be silent or reveal that there is a profound difference between the Government of the United Kingdom and British Ministers? What is absolutely certain is that he will not be asked to represent the UK in those discussions. The negotiations would have to be conducted by the UK Minister.
My amendment establishes a statutory basis for the Welsh representation of UK interests in the Council of Ministers in those exceptional cases where lead Ministers agree to such representation. The amendment gives representatives of the Welsh assembly rights comparable with those of the German Länder and the Belgian regional Ministers who have so often been quoted as precedents. Unfortunately much of what has been said in earlier debates indicates that either the Government do not understand what happens in Council negotiations or they are attempting to put up a smokescreen to mislead the people of Wales.
Throughout our proceedings, the Ministers who reply to our debates are as helpful as they can be. I hope that we shall have real frankness from whichever noble Lord replies about questions that are of immense importance to Wales.
9.45 p.m.
Lord Elis-Thomas: My Lords, my Amendments Nos. 63 and 64 are grouped with these amendments and are intended to ensure that there is a representative—an assembly secretary for a responsible field in devolved functions—as part of the UK delegation and that, in parallel, the assembly can make representations to the EU commission.
I regret that my amendments are grouped with the rather lengthy lecture that we have heard from the noble Lord, Lord Crickhowell, on the existing and past arrangements of the European Union. All this is now up in the air. The letter from the Chancellor of the Federal Republic and the President of the French Republic in advance of the Cardiff summit, the communiqué of the Cardiff summit and the decision of heads of government and the president of the Commission to have an informal summit as part of the Austrian presidency in October relate to the whole question of relations between the European Union as a structure, member states and regional and national levels of government.
I will not quote from the letter or from the presidency decisions in detail except to emphasise that we are now in a new situation. The lecture we have just heard may be a rather inadequate summary of what was past practice. We are now in a new situation within the context of extension, within the context of the interesting political argument inside the German state about the relationship between the Länder and the federal government. In particular, the re-election of Chancellor Kohl and the positioning of the SDP in relation to that, has meant that the question of the role of regions—that is, a level of government below member state—in relation to the European Union is now a major issue in the politics of Germany. As often in these matters, the politics of one member state reverberate in another.
The issue of subsidiarity, the issue of levels of decision making—local, regional and national, as they are described in the Chirac-Kohl letter—are all issues which are currently part of the discussion within the Union. The points which were put forward by the noble Lord, Lord Crickhowell, about recent practices of the Council of Ministers and ways of operating are all issues now open for debate.

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I am not going to argue how those issues should be resolved. Clearly there are issues of competence which work at different levels. I do not accept the point that the noble Lord was making rather strongly that the issues of competence relating to Wales have to do only with matters which are somehow marginal, as he described them. According to him, culture is marginal, although it is a major source of employment in the Welsh economy. He was suggesting that issues relating to agriculture in the economy were somehow more central.
The division of relationships between different areas of policy is no longer relevant. We are in a position where the whole nature of the relationship between member states, regions, localities within the Union and subsidiarity will be an area for discussion at the informal meeting of heads of government under the Austrian presidency in October. We need to be creative in such a situation. I do not understand why the noble Lord, Lord Crickhowell, is so insistent upon freezing the relationships of the national assembly, the Northern Ireland Assembly, and the Scottish parliament into one model, and why he is so keen to fix upon what was agreed in the Belgian federation, the Spanish state, and the German Länder at particular times. Those are moving issues.
Lord Crickhowell: My Lords, I thank the noble Lord for giving way. I am puzzled as to why he thinks I am trying to fix the relationships in one particular form. All I have done is put down an amendment to turn into statute what the Government say they wish to happen and believe will happen, and to ask a number of questions about what may be allowed in the present circumstances. I hope feelings will move on, but it is a good idea to know where we are at present.
Lord Elis-Thomas: My Lords, I thought that the noble Lord was seeking to place on the face of the Bill what the relationships between the national assembly for Wales and the rest of the EU were going to be. Now I understand that that is not the intention, in which case I shall happily sit down and listen to the Minister's discourse about the future.
It is important that we understand that relations between the national assembly, the Scottish parliament and the European Union are, again, concordat-type relationships, conducted at the European level, and the possibilities of developing those relationships is something that we in this House should welcome and not seek to freeze-frame.
Lord Roberts of Conwy: My Lords, we have heard some interesting speeches. I detect a similarity between the amendment spoken to by my noble friend Lord Crickhowell and Amendment No. 63 put forward by the noble Lord, Lord Elis-Thomas. Both of them have taken at his word the speech of the noble and learned Lord the Solicitor-General on Second Reading, particularly when he described the relationship that the assembly would hope to have with the European Union. He said:
"However, the assembly will have an important role to play. It will be able to scrutinise fully European Union documents and proposals and to take evidence on their impact and therefore put a
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Welsh eye on what the impact will be on Wales. Where appropriate, assembly secretaries, as well as officials, will have a role to play in delegations to the Council of Ministers, as agreed by the UK Minister leading those negotiations. Assembly secretaries will be able, subject to the agreement of the lead UK Minister, to take part in relevant negotiations on policy at the Council of Ministers".—[Official Report, 21/4/98; col. 1130.]
I thought that the noble and learned Lord was being optimistic. The prospects that he held before us were glowing. I listened to the speech of the noble Lord, Lord Sewel, on Second Reading of the Scotland Bill. What he said appeared to be somewhat more guarded. He stated:
"As the White Paper foreshadowed, the conduct of relations with the European Union is necessarily reserved to the United Kingdom Government because the United Kingdom is the member state. But the Bill gives the parliament and the Scottish executive the full powers they need to observe and implement European Community obligations in so far as they relate to the devolved areas. The parliament will be able to scrutinise relevant EU proposals and legislate to give effect to Community obligations for Scotland. And Schedule 5 also provides that the Scottish executive will be able to play a role alongside the United Kingdom Government in negotiations".
It is interesting to note what Schedule 5 comprises. Paragraph 7 is headed "Foreign affairs, etc", which includes the European Communities and their institutions among the gamut of international organisations mentioned in sub-paragraph (1). But of course, paragraph 2(b) of paragraph 7 of Schedule 5 to the Scottish Bill points out that:
"Sub-paragraph (1) does not reserve … assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies".
Are we to understand that that degree of non-reservation is tantamount to providing,
"that the Scottish executive will be able to play a role alongside the UK Government in negotiations"?
What kind of assistance and role is that? Is it not a little too far-fetched to interpret Schedule 5 in that way?
The noble Lord, Lord Sewel, felt obliged to go on to say:
"Much has been made in another place of the omission from the Bill of a right in law setting out exactly when ministers of the Scottish executive will participate in meetings of the European Council of Ministers and other negotiations. I have explained that the Bill contains enabling provisions, to make clear that they may take part in such negotiations. But the UK is the member state; we must have a common UK position and a single UK delegation. The emphasis in negotiations will continue to be on working as a UK team; the delegations will be led by a UK lead Minister who will retain overall responsibility for the negotiations, the same as now".
Before we read much further into this speech there is a reference to the concordat. The Minister stated:
"We envisage that these matters will be covered by concordats between Edinburgh and London, but we are firmly of the view that it would be neither sensible nor appropriate to try to prescribe the detail of who should speak when on the face of the legislation".—[Official Report, 17/6/98; col. 1572.]
I do not believe that the Welsh position is very different. If one reads the closing speech of the noble and learned Lord the Solicitor-General on Second Reading of this Bill and couples that with the somewhat greater detail spelt out in the introductory speech of the noble Lord, Lord Sewel, to the Scotland Bill we arrive somewhere nearer the truth.

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My noble friend referred to the situation between the European Union and the Länder. That was a subject raised by my noble friend Lord Mackay of Ardbrecknish and was acknowledged by the noble Lord, Lord Williams, who has written to my noble friend saying that,
"During the second day of the committee stage of the Government of Wales Bill, you asked for examples where representatives of regional administrations had attended, on behalf of their Member State, formal meetings of the European Union".
The answer given by the Minister was:
"The more obvious instances which have been identified relate to the German Länder. Because of its particular expertise, Bavaria, for example, has represented the German Government at EU meetings where cultural issues have been the main agenda item; similarly, members of the Catalan autonomous government have attended meetings on behalf of the Spanish when language issues were under consideration".
I expected to find a reference to agriculture or fisheries. I accept that Bavaria may not quite rank as a fishing Land; although in respect of agriculture it would certainly do so. But no; it is in those areas that have been mentioned that those Länder and provinces have featured.
Then there is the very strong point made by my noble friend Lord Crickhowell quoting my noble friend Lord Cockfield about the status required for attendance and indeed for direct participation in the Council of Ministers. My noble friend covered the ground extremely adequately. The noble Lord, Lord Elis-Thomas, commenting on what my noble friend said, referred to the changing situation. Yes, the situation may be changing but we are, in legislation, bound to recognise the situation as it actually is, as we have experienced it. I do not believe that there is any real difference between the two sides on that. That is what the Government have been doing. They have been acting on their historical knowledge and experience. That is precisely what we have done with our Amendment No. 51.
We recognise that the Bill fails to guarantee a strong voice for Wales in the European Union. There is nothing to dispel the fear that the role of Wales in the Council of Ministers will be less than it is now. And so our proposed new clause seeks to give the assembly the right to be consulted before a Minister attends the Council of Ministers—a very important right; to be advised on proceedings in the Council of Ministers; to question the Secretary of State after a meeting of the Council of Ministers; and to attend with and participate in the United Kingdom delegation with the Minister's consent. Again, like my noble friend Lord Crickhowell, we have accepted the Government at their word and have defined our amendments accordingly.
10 p.m.
Lord Elis-Thomas: My Lords, I am grateful to the noble Lord for giving way. How does he say that the position of Wales within the European Union, under the devolved arrangements, in relation to the Council of Ministers and the structure of the Union will be less than it is now?
Lord Roberts of Conwy: My Lords, that is simply because we are currently represented by Ministers who belong to a unitary government. When any United Kingdom Minister represents the United Kingdom at the Council of Ministers he represents Wales as well as England, and indeed in many cases, Scotland too. Before he goes to the Council of Ministers he has usually been consulted by the Secretary of State for Wales, who has had his input into the position that the Government and the Minister representing them takes at the meeting of the Council of Ministers.
In future, it appears that our unity under the United Kingdom Government is changing, if it is not under some threat—but let us leave such words out of it—and there are doubts as to how that unity is going to be expressed in constitutional terms in relations between Ministers and between government departments. There are whole areas where there are question-marks, to which we have referred in relation to the concordats. Therefore we are very concerned about the future representation of Wales—and I am sure this extends to Scotland—in the Council of Ministers and about how our interests in Wales are to be safeguarded.
Lord Williams of Mostyn: My Lords, Amendment No. 43 differs significantly from Amendment No. 51, and Amendments Nos. 63 and 64 themselves differ from the other two sets of amendments. I think that some errors have been perpetrated this evening. A phrase used in respect of Amendment No. 43 was,
"We wish to give rights to the assembly on the face of the Bill."
I then look at the words of Amendment No. 43, and this gives no rights. It says,
"At any meeting of the Council of Ministers … of the European Community at which matters relating to Assembly functions are to be considered".
Assembly functions, I take it, are as set out in Schedule 2 on page 82 of the Bill. They include culture, museums and libraries, water and flood defence and the Welsh language. A great gamut of functions numbered 1 to 18 appears on page 82.
But what happens then?
"a member of the executive committee (established under clause 56) shall"—
and I omit some words deliberately,
"be entitled to speak and vote on behalf of the Assembly and of the United Kingdom."
The reason that I omitted some words deliberately is to underline them now and to point out again that it is an error to say that any right of any sort is being given, because what is suggested in Amendment No. 43 is simply this:
"shall be entitled to speak and vote on behalf of the Assembly and of the United Kingdom".
with the consent of the Minister of the Crown leading the United Kingdom delegation. That is exactly the present situation which obtains, as indeed the noble Lord, Lord Crickhowell himself observed. He quoted the treaty, saying that the key words were that the representative to the Council of Ministers is,
"authorized to commit the government of that Member State".

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I agree. The Government's view, which I believe to be correct, is that if they wished they could authorise an assembly secretary or a Scottish minister to take on that role and commit the United Kingdom. Therefore I repeat that no right would be given, because it remains entirely at the discretion of the Minister of the Crown leading the United Kingdom delegation. So to speak of "rights" is wholly misconceived, not to say bogus.
The noble Lord, Lord Crickhowell, reviewed constitutional arrangements in at least two other European Union countries. One concerned the position of the Länder. He spoke of a particular article of the German basic law which of course is subject to the direction of the German Supreme Court in Karlsruhe. He spoke of the German basic law, which is a written constitution referring to areas of exclusive competence of the Länder. Exactly so; but that has nothing to do with our present situation. The noble Lord spoke of the domestic legislation of Spain, as to whether or not the autonomous government of Catalonia could take the lead. That, too, is nothing to do with our present situation. Whatever piece of domestic legislation is introduced and passed in the Westminster Parliament, nothing in domestic legislation can override any legal rules binding in European Union contexts at the Council of Ministers. I repeat: nothing at all.
Therefore, Amendment No. 43 would do nothing more than underline the present situation. It is perfectly open to any lead Minister of Her Majesty's Government in the Council of Ministers to nominate even at the moment anyone,
"authorized to commit the government of that Member State".
It is quite right, as indicated in the citations that the noble Lord, Lord Roberts, made, that the only EU member is the United Kingdom. It is within that context that the UK Minister of the Crown can, if he or she wishes, nominate another person to speak and vote on behalf of the UK.
As I indicated earlier, Amendment No. 51 is different. I suggest to your Lordships that these are the sort of arrangements which are apt to be decided within the context of concordats; in other words, the assembly should put its mind to having a concordat with Westminster—and, in turn, Westminster should do likewise—about how one would have discussions, considerations and co-operative thoughts about what ought or ought not to go on. Therefore, Amendment No. 51 should not be on the face of the Bill but should be the subject of a concordat.
Other observations were made about the views of the noble Lord, Lord Cockfield, to which, of course, everyone pays the highest regard in this House. But, if I jotted down the citations correctly—and I cannot say that I got down every reference that the noble Lord, Lord Crickhowell, made because I do not think it was possible to do so—there is reference again to the phrases, "authorized by the government" and, indeed, "authorised to speak and vote as a representative of the UK Government". As far as I am aware, subject to
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correction, there is nothing in European law which prevents the UK Government designating a lead Minister,
"authorized to commit the government of that Member State".
The noble Lord, Lord Crickhowell, asked further questions relating to the speech made by the noble Earl, Lord Lindsay, as to what would happen if there were a session limited to the lead Minister of the United Kingdom. The answer is that the situation would be exactly the same as it is at present. It depends who the UK lead Minister is and what delegation in number is entitled to remain in the closed session. If within that number the UK lead Minister wants an official, a lawyer or a designated member, exactly the same rules would apply.
Other questions were put to me and I hope to deal with all of them tonight. However, if I miss any of them, I shall certainly write to the noble Lords who have shown an interest in the matter. The noble Lord, Lord Roberts, was courteous enough to read out my letter. I promised to research, in so far as I could, the question which the noble Lord, Lord Mackay of Ardbrecknish, put to me. I believe that I correctly represented the present situation in that letter; namely, that Bavaria, among the Länder, had represented the German Government where cultural issues had been the main agenda item.
The noble Lord, Lord Elis-Thomas, has a point when he says, especially in the context of the Welsh assembly, that cultural matters—including language, and so on—are important in the life of the nation and also in the context of tourism. People like to visit Wales because, in part, it is different. That is not unimportant. The mere fact that it relates to culture does not mean that it is of no value; in fact, it is of deeply profound value in the context of Wales.
I gave the House a further example about the Catalonian autonomous government attending on behalf of the Spanish when language issues were under consideration. I do not believe that any of those examples were incorrect. If I have misrepresented factual situations, then I shall be only too pleased to say that I am sorry that I was factually wrongly advised and wrote a factually incorrect letter. But I do not think that any attack on my factual assertions has been made, or is capable of being made. The document states that it is possible for an assembly member to lead such a delegation. Nothing I have heard from any of your Lordships this evening even begins to persuade me that I am wrong in that assertion, either politically, legally, or as a matter of fact.
Distinct questions were asked on an earlier occasion. The noble Lord, Lord Stanley of Alderley, was kind enough to say that he would not speak on this matter but wished me to deal with his points. I am most grateful to him for his courtesy. The question was asked: where EU schemes allow discretion, will it be open to the assembly to use that discretion? My answer is "yes". If a European scheme allows no discretion, the assembly will consequently have no freedom to act differently. The suggestion has been made that where joint issues arise, the assembly would simply rubber-stamp or initial

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papers prepared in Whitehall. That is not so. Joint functions will have to be exercised by both parties in agreement. That is not entirely different from the present situation where of course the Welsh Office makes representations to MAFF. In the discussions one Minister may be more persuasive than another, or one set of officials may be less persuasive than another.
I was asked: what would happen if MAFF conducted negotiations, or an assembly secretary conducted negotiations, on behalf of the United Kingdom in Brussels. Could the MAFF Minister be questioned in another place? That would, of course, be a matter for the Speaker and Standing Orders in another place. If a MAFF Minister is reporting to another place on concluded negotiations in Brussels, I see no reason why in appropriate circumstances questions should not be put to the Minister in another place. I stress that it is not for me to determine these issues or to be discourteous to another place and the authorities of another place. However, I see no reason in principle why that should not occur.
At present all members of the United Kingdom delegation in any context have to speak to an agreed line. The noble Lord, Lord Mackay, is quite right: the agreed line is sometimes the result of bruising encounters. I reiterate there is no question of an assembly secretary, or indeed first secretary, being able to speak on behalf of the United Kingdom without two things obtaining: first, the permission of the UK lead Minister and, secondly, speaking to an agreed line. However, that is no different from what the noble Lord, Lord Roberts of Conwy, did when he spoke in such circumstances as the UK Minister, as he told the noble Lord, Lord Elis-Thomas, earlier.
That is the present situation. I do not dissent from what the noble Lord, Lord Crickhowell, said. We need to know what the present situation is. But we also need to bear in mind that the assembly will grow and change organically. The noble Lord, Lord Elis-Thomas, has a point there. The assembly is able to scrutinise and debate proposals for European legislation. It is able to make representations to the Secretary of State when it has reached its own conclusion. It is able to deal with these matters in concordats, which will be prepared on the basis of efficiency and decent, co-operative working relationships, and which will be published. Assembly members will be able to sit on the Committee of the Regions. They will be able to submit nominations to the UK Government for Welsh representation on the economic and social committee.
Therefore it is a mistake to lodge oneself, willingly or unwillingly, in the straitjacket of the simple factual question of who can lead on behalf of the United Kingdom Government. The answer is precisely the same as that which applies at present. The only person who can lead for the United Kingdom Government is someone who will present an agreed policy and who will be nominated by the lead Minister.
Lord Mackay of Ardbrecknish: My Lords, before the noble Lord sits down, will he answer a question? Let us say that there is an agreed line, and the Minister
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for, say, agriculture or trade does a deal in the middle of the night. As the Minister will appreciate is the case with all these matters, the deal is never absolutely perfect; there has to be a little give and take in order to achieve the deals. Currently a Scottish Office, Welsh Office or Northern Irish Minister is bound by the collective responsibility of the one government to defend the agreement, even when he may perhaps have to swallow quite hard and possibly receive a lot of stick in his own back yard.
I cannot quite get my mind round what will replace collective Cabinet responsibility when it comes to defending the outcome of any package. I understand it down the corridor, because the lead Minister will be a UK Minister, or else he will have delegated the responsibilities. I suspect that in relation to the issues I am talking about, the lead Minister will be a UK Minister. How is the Welsh Secretary tied in to that decision? Currently, Ministers in the Welsh Office are tied in by collective responsibilities in government. That will not happen. How will he be tied in in the future?
Lord Williams of Mostyn: My Lords, it seems to me that there is no difficulty at all. If it is the Welsh First Secretary who is representing the United Kingdom line and the United Kingdom Government, because the UK is the only member of the EU, if he or she negotiates, for instance, on cultural matters, he or she will have to defend the agreement arrived at loyally. That is a necessary implied condition of his or her becoming the lead United Kingdom Minister.
Lord Mackay of Ardbrecknish: My Lords, I was not solely concerned with him as the lead UK Minister or if he was simply part of the discussion which went on beforehand and the UK was represented by, say, a MAFF Minister who came to those decisions. My suspicions have constantly been raised because the Minister goes back to culture and things like that. I want to get on to the big economic issues which drive the European Union and make up the common policies of the European Union. Those are the matters on which I want assurances. Let us say that the Welsh Secretary is not asked to be the lead Minister, and that the lead Minister is a MAFF Minister. Perhaps I did not make my question clear. How does the Welsh Secretary become tied in to what is currently collective governmental responsibility?
Lord Williams of Mostyn: My Lords, the noble Lord makes at least three points. I do not call culture "things like that", because it is extremely important. Turning to the noble Lord's points, there are three Ministers involved: there is the lead UK Minister; and he spoke of the Welsh Secretary—I am not sure whether he meant the Secretary of State or the First Secretary of the assembly. I am not nitpicking; I believe that there are three Ministers possibly involved. If it is the Secretary of State for Wales, there is no problem. If it is the first Secretary, and he has negotiated with MAFF and failed in the negotiations, it is a matter for his judgment what dissent he puts in the public arena, because he is an assembly First Secretary. If he wishes the United

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Kingdom position to be x and it is x-minus, then it is a matter for him, of course bearing in mind the political realities—he has to deal in future negotiations with Westminster colleagues. I hope that no one is of the brutalist school and will say, "I haven't had all that I wanted on this occasion. It is my bat. I shall now depart". He has to work with colleagues in Westminster in the future.
If one wants to be defeatist about these matters, or even unduly cautious, one can ask: what if there is no good faith, or what if there is an enormous chasm? One will approach these matters pragmatically, as Ministers do presently. If they cannot bear collective responsibility, they have the option of resignation. However, there are intermediate possibilities as well. I do not believe that these matters cannot be made to work if we wish them to work. However, I stress that nothing in domestic legislation can override European Union legislation in this context.
Lord Crickhowell: My Lords, I am grateful to the Minister for what he has just said to strengthening the arguments that I put earlier regarding the impossibility of the Secretary of State for Wales being the First Secretary. His remarks were incompatible with that situation. I was slightly surprised that both he and the noble Lord, Lord Elis-Thomas seemed rather belligerent on this subject. I do not believe that they are entitled to lecture either me or my noble friend Lord Roberts of Conwy on the subject of the importance of the Welsh assembly. There are not many people who have devoted more energy to encouraging and strengthening Welsh culture in all its aspects than we have. I could not be a stronger supporter of those subjects to which the noble Lord, Lord Elis-Thomas, referred.
Most of the matters which come under that umbrella are, in any case, the responsibility of the UK Government at present and will be the responsibility of the Welsh assembly. They are hardly touched on by European policy. These amendments are actually concerned with crucial issues on which we are wholly or substantially dependent on European policy; I refer in particular to agriculture and some aspects of industrial policy.
The Minister referred to wishing to give rights. I used the phrase, "put on a statutory basis". I was seeking to put on a statutory basis the words, the undertakings and the expectations raised earlier by Ministers. Indeed, though the noble Lord, Lord Elis-Thomas, seemed a little belligerent about my amendment earlier, it was probably because he hurried through dinner and had not read it. I find it hard to believe that he can criticise my amendment, which in many respects has much in common with his amendment. We are trying to give more power and effectiveness, more involvement to the Welsh assembly. I believe that we are aiming in the same direction with the same objectives.
I said also that I doubted whether national law could overrule European rules. The Minister confirmed that fact. I would add that it is not for me to decide between the legal wisdom of the Minister and the practical experience of my noble friend Lord Cockfield as a
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commissioner on the exact relationships in that respect. However, there are some issues which are not absolutely clear.
I fear that we are in a bit of a muddle about crucial negotiations. There are two aspects to this matter. One arises when we are putting together a policy. In my time as a Minister, the Minister of Agriculture always, as a matter of principle—it was true also for the Secretary of State for Industry—before going to Brussels for important negotiations, discussed the issues with the Secretaries of State for Wales, Scotland and Northern Ireland and reached a totally agreed position. As my noble friend pointed out, when they came back with whatever deal they had succeeded in obtaining, collective responsibility bound them together.
The situation will be different when the Minister is the representative of a different body and of a different assembly. It will not be possible to have the same cohesion in the agreement when they go and it is by no means clear that there will be the same unity about what has been achieved when the Minister returns, having completed his negotiations in the middle of the night.
The truth of the matter is that the position will not be stronger under existing arrangements. We are justified in our fears that in many respects it will be weaker. However, we received a detailed response to many of our questions. We shall want to consider that response carefully. It would not be right at this late hour—we always seem to come on to this important subject late at night—to divide the House. However, there are still issues which leave me extremely unhappy about the position and I shall want to consider the position carefully before Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Consultation about government's legislative programme]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 44:
Page 20, line 21, leave out ("such").
The noble Lord said: My Lords, I do not propose to be belligerent about this amendment but I am deeply disappointed that there has been no movement by the Government on this important issue; that is, the consultations to be carried out between the Secretary of State and the Welsh assembly about the Government's legislative programme.
As drafted, Clause 31 is written almost entirely from the point of view of the Secretary of State. It provides that he will consult with the assembly as it appears appropriate to him to do so. He is not required under subsection (4) to undertake consultation with the assembly about a Bill if he considers that there are considerations relating to the Bill which make it inappropriate for him to do so. All the emphasis is upon giving to the Secretary of State a discretion as to whether to consult the assembly. If he does not want to, he does not have to.
What is wrong with this is that it does not reflect the true balance between the Westminster Parliament and, specifically, the Welsh assembly. We know that the

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arrangements are different in Scotland and no doubt they are different in Northern Ireland. But, for Wales, all the primary legislation is to be made at Westminster, and it follows that the secondary legislation, which will be for the consideration of the Welsh assembly, must be contained within the framework of the primary legislation that is passed here. That primary legislation will obviously reflect the policies of the government who are elected to Westminster. They may be of the same political colour; but they may equally be of a totally different political colour. It seems to us on these Benches that where one has this constraining influence of the primary legislation—the framework within which everything that the assembly legislates about must be contained—it is essential that the Secretary of State should consult the assembly; not on matters that he considers to be appropriate but on the whole of the legislative programme.
That is the purpose of the amendment. It does not impose on the Secretary of State a particularly onerous burden. After all, the whole of the Bill removes from the Secretary of State many of the burdens that he sustains at the present time. Having taken away from him the weight of the responsibility of running the day-to-day work of the Welsh Office and the consideration of how the budget is to be spent, it is surely not too much to ask of him to come to the Welsh assembly and to explain, discuss and consult over the primary legislation within which the Welsh assembly has to work.
I think that all those eager young people, such as Kirsty Williams, to whom reference was made earlier today by the noble Lord, Lord Elis-Thomas, who are going to go along to Cardiff, full of enthusiasm and ready to put into effect the policies that the Welsh assembly considers to be appropriate for Wales, with a spark to do something for their country, will suddenly hit an enormous barrier—the existing primary legislative programme of the Westminster Parliament. Surely, the Secretary of State should be obliged to consult about it. I beg to move.
10.30 p.m.
Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Thomas of Gresford, has made a powerful point. I should have found it more powerful if the noble Lord had taken part in the previous debate, which was about consultations and discussions surrounding important matters on Europe. But that does not seem to matter too much.
I think that both are equally important. All governments use phrases like "such consultation as he thinks appropriate", and it is always difficult to defend them. It is a fairly vague form of words. I have no doubt that we shall receive some assurances from the Minister. It is particularly important, as the noble Lord said—perhaps we omitted this point in the previous debate—if the people involved are of different political parties with different manifestos and different agendas. That is when it may be convenient for the Secretary of State in the Westminster Government to decide not to bother consulting because he knows jolly well that when he
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consults he will find that he has an opposite number with an entirely different agenda. The noble Lord has made some valid points and I look forward to the Minister's reply.
Lord Falconer of Thoroton: My Lords, I shall certainly not deal with the amendments in a belligerent way. We had a debate on precisely the same amendments on 2nd June. The noble Lord, Lord Thomas of Gresford, was kind enough to describe my answer on that occasion as "wholly inadequate". Although I shall repeat enough of the points, I hope that I shall go further than on the last occasion.
I hope that it is clear from what I said on the last occasion—I shall certainly say it on this occasion—that there is very little between the Government and the noble Lord on the central issue in this debate; namely, that the assembly should be fully consulted about those government Bills which affect its responsibilities such as the environment, planning, education and social services.
In the course of the debate this evening, the noble Lord, Lord Thomas of Gresford, said that he believes it appropriate that the assembly should be consulted about the legislation within which the assembly must work. I do not believe that there is much difference between us in relation to what the central obligation should be. We also seem to be in agreement that the nature of consultation should not be prescribed by this clause since his Amendments Nos. 44 to 48 do not prescribe what form the consultation should take, only that there must be consultation.
In our draft, as is the way, it would be for the Secretary of State to form a judgment about the nature and extent of the consultation and its precise timing. When it is the Secretary of State who is, as it were, the one "in the know" as to proposals in relation to primary legislation in the Westminster Parliament, then, in effect, and simply through that circumstance alone, it must be for the Secretary of State to determine what is the most appropriate way for that consultation to take place and the most appropriate time for it. So the drafting of the Bill in its present form is simply intended to reflect that simple reality.
I believe that I may also lay to rest any concern that the noble Lord had that consultation would not take place until a Bill had been introduced. That would not be a practical way for the government of the day to proceed. I am sure that this and future governments will want relevant legislation framed with regard to the assembly's views. I say "relevant legislation" because, as I believe I have made clear and I believe the noble Lord accepts, plainly there will be some pieces of government legislation—for example, legislation applying only to England or matters such as the Armed Forces—which lie outside the assembly's responsibilities and where the Secretary of State may conclude that no consultation is appropriate. Again, I do not believe that that is very far from what the noble Lord said in the course of the debate.

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The final amendment in this group invites us to omit Clause 31(4) which states:
"This section does not require the Secretary of Stale to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".
Perhaps I may develop an example of where that provision might be relevant and draw on an actual case. When the community charge had been in operation for only one year, the Government decided to introduce a blanket reduction of £140 per person for the second year to be funded by an increase in VAT. The decision was announced in the then Budget and the relevant legislation was introduced afterwards in a Bill which was separate from the Finance Bill. Before the Budget announcement the Government had already formed an intention to introduce a Bill. If the assembly had been in existence at the time, that would have triggered a requirement for consultation under subsection (3) since, as we know, local taxation would be among the assembly's responsibilities.
I hope that the noble Lord can see how, in the scenario I have given, a Secretary of State might well have concluded that there were considerations prior to the Budget announcement which would make it wholly inappropriate for him to consult the assembly. In a sense it would have been in the same position as everybody else—it would have to wait until the Budget. Obviously, once the announcement had been made there would be nothing to prevent consultation and the full involvement of the assembly in the finalisation of legislation.
I hope that that example demonstrates that subsection (4) has a purpose which is separate from the discretion about consultation given to the Secretary of State in subsections (1) and (3). In view of those explanations, I very much hope that the noble Lord will see that we are on broadly the same lines and that the clause seeks to achieve that which the noble Lord wishes to achieve. I invite him to withdraw the amendment.
Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his explanation and for reminding me that I described his previous reply as "wholly inadequate". I now amend that phrase and say that his reply has simply been "inadequate".
The essential point that I am trying to convey to the Government—I want them to give full consideration to amending the Bill—is with regard to the fact that there should be a firm duty on the Secretary of State, enforceable at law, to consult the assembly. It should not be a matter of discretion. The Minister knows that when we discussed concordats, I argued that they should not be legalistic documents, and that there should not be the opportunity to run to court to enforce the working relationships between various government departments. But this is of an entirely different order.
We should not get into the situation, to which the noble Lord, Lord Mackay, referred, where one political party is in power in Westminster and another in Cardiff, there is a clash between the two and the Westminster Government refuse to consult Cardiff. In that situation, there is a role for the courts to play, to enforce a duty on the Secretary of State to consult on the primary
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legislative programme within which the Welsh assembly has to work. That is what I seek from the Government. Heaven knows, we have helped them even today in certain other areas and I look for their assurances and their further assistance when we next debate this. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 45:
Page 20, line 22, after ("session") ("and the National Assembly's legislative proposals").
The noble Lord said: My Lords, I move this amendment in a totally non-belligerent fashion. This is not just a rehearsal of what we debated in Committee on the notion of a fast-track legislative relationship between the assembly and both Houses of Parliament. It is an attempt to develop the argument. The amendments would allow for draft Bills in specified devolved areas and for formal consultation to take place both over the relationship between Cardiff Bay and Westminster as to the making of procedures for representations from the assembly and over consulting on the issue of the further devolution of primary legislative powers.
I am sure that we shall return to this issue over the years in the devolutionary process. I am not seeking a thin end of a wedge—if that can be sought; I seek rather a process of dealing with the specific situation whereby there is a separation of powers—if I can use that expression—between Westminster and Cardiff Bay in relation to legislative form; in other words, that we are dealing with a situation where delegated legislation will be operated and, indeed, devised in Cardiff, and primary legislation will be operated at Westminster. Some of the issues that were raised in Committee, about using procedures at Westminster to ensure that any issues arising out of the assembly's practical role as a deviser of delegated legislation, should be able to be dealt with here. If we do not have such a procedure, the danger is that there will be bland Wales primary legislation here, which means that debates on legislative issues relating to Wales will not be satisfactory at this end and the amount of delegated legislation at the Cardiff end will have to be more substantial. One needs a relationship between the two processes much like what happens at European Union level, where legislation and regulation are made through agreement between member states and implementation is carried out as a consequence.
I believe that merely to produce delegated legislation or implement primary legislation without a return to the source at Westminster means that the assembly may find itself regularly in what I described in Committee as logjams of opportunities to provide for primary legislation issues that arise out of its practical activities. I do not argue that the assembly should have additional powers but rather that it should be able formally to make representations to Westminster as the source of its primary legislative power in a way that makes its activities more meaningful.
To coin a phrase at this time of the evening to wake us up, this is all about taking Clause 33 seriously. The Minister will say that Clause 33 provides that the assembly may consider and make appropriate

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representations about any matter affecting Wales. Of course it may, but that is not the issue. To take the matter seriously means that there are specific indications for that purpose. That is why I have returned to the issue of a cycle of legislative activity whereby what is delegated to Cardiff and is practically produced there has a way of feeding back into the primary process at Westminster. I beg to move.
10.45 p.m.
Lord Roberts of Conwy: My Lords, so far as I can see, there is nothing in Clauses 31 to 33 to prohibit the assembly from making representations concerning any matter that affects Wales, including the need for legislation. Wales has had devoted to it over the years a number of primary legislative measures: the Eisteddfod Act 1959, for which my noble friend Lord Thomas of Gwydir was responsible, and the Welsh Language Act 1993, for which I had some responsibility. We now have the Bill. In recent years certain parts of Bills have related specifically to Wales. I am thinking particularly of the Education Act 1988, and subsequent education legislation also comes to mind.
I would have thought that when the Secretary of State discussed with the assembly the Government's legislative programme for the forthcoming Session under Clause 31 the assembly would put forward its special legislative requirements for Wales. It might have done so earlier on an informal basis. But no one can be sure what will be in the Government's legislative programme until it is announced in the Queen's Speech. I can understand the anxiety of the noble Lord, Lord Elis-Thomas, to get as much as he can on the face of the Bill. It is an anxiety which he has imputed to me in different contexts, but I question the need for this amendment except for its cosmetic value.
Lord Crickhowell: My Lords, I am all for consultation. I have nothing against the idea that the clause should encourage it. However, I look with some concern at Amendment No. 53 in the name of the noble Lord, which is grouped with the other amendments. That seems to be taking consultation an extraordinarily long way. The noble Lord said that he was not attempting to produce the thin of the wedge but this new clause goes pretty far in that direction.
Here we are told that,
"where representations are made by the Assembly to the Secretary of State concerning the acquisition by the Assembly of primary legislative powers in any field"—
pretty fundamental that—
"provided that such representations receive the support of at least a two-thirds vote of the members of the Assembly"—
certainly not a totally unlikely event—
"the Secretary of State for Wales shall within in one year of receiving any such representations, place before Parliament a bill incorporating those representations in the form of proposals for amendments to this Act".
The Secretary of State is apparently not entitled under this clause to go back to the assembly and say, "No, I am not having any of this. This simply is not on". He is obliged to produce a Bill. The noble Lord may tell
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me that the Secretary of State could come down to the House and say, "I have been made to produce this Bill because the Act says that I have to. I do not believe in it and I hope that you will all reject it". If he did that, the relationship with the assembly would be strained in the most appalling way. If a Government Minister comes down to either House with a Bill, there is a reasonable expectation that he will support the Bill.
This clause goes much further than I would wish to go. While I have every sympathy for the general concept that we should have consultation, I should find it quite impossible to support the amendment.
Lord Falconer of Thoroton: My Lords, I congratulate the noble Lord, Lord Elis-Thomas on his continuing ingenuity in seeking means to involve the assembly in primary legislation and to have conferred on it—as the noble Lord, Lord Crickhowell has pointed out—primary legislative powers. It will not surprise him to learn that the Government cannot accept his amendments, some of which were debated in Committee.
As we have already discussed, Clause 31 delivers the White Paper commitment that the Secretary of State would consult the assembly about the Government's legislative programme. The consultation upon it is one way in which the assembly can influence the content of primary legislation. Amendments Nos. 45 and 50 seek to go further and introduce a requirement for the Secretary of State to consult the assembly about the assembly's legislative proposals—namely, draft Bills and draft amendments which it, the assembly, has approved during the previous session.
I am not quite sure to what the draft amendments would relate. If they are to relate to government Bills in a particular session, it would require a remarkable degree of foresight on the part of the assembly to have drafted amendments to them during the previous session. If they relate to Bills in the previous session, it would be too late in any event.
Apart from the consultation under Clause 31, the appropriate way for the assembly to seek to influence legislation at Westminster would be for it to use its powers under Clause 33, which states that the assembly may consider and make appropriate representations about any matter affecting Wales. The assembly can make appropriate representations to whomsoever it chooses about any Bill before Parliament that affects Wales, whether or not the Bill relates to the fields in Schedule 2. Those representations might include suggested amendments and could be published or sent to the appropriate Minister or to any member of either House. It would be for the Government or Parliament, as the case might be, to decide what if anything they wished to do in the light of the assembly's representations.
As for the assembly drafting whole Bills, if the assembly was seeking to argue that some specific new legislative provision should be made for Wales, this could best be put forward in a policy document, again using the powers in Clause 33, rather than in a draft Bill. If the Government of the day were to take up such

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a suggestion from the assembly, they would wish to have their own Bill drafted by parliamentary counsel as now.
Turning to Amendment No. 52, I think Madam Speaker in another place would be well able to deal with any representations she might receive from the assembly without this Bill requiring the Secretary of State to produce proposals for procedure in another place. The assembly will not be part of Parliament, and it is difficult to see what representations it would wish to make to Madam Speaker. I imagine that the assembly would be more likely to make its representations to Government Ministers, or individual Members of this House or another place.
The noble Lord, Lord Crickhowell, took us through Amendment No. 53. He is right: it would require fresh primary legislation at Westminster to confer such powers on the assembly, but that should be a matter for the government of the day to propose and for Parliament to approve, no doubt following a referendum on the matter, rather than merely a vote in the assembly, as the amendment proposes. The new clause goes well beyond the Government's proposals which were put to the people of Wales last year, and we cannot accept it. In view of my response, I invite the noble Lord to withdraw the amendment.
Lord Elis-Thomas: My Lords, I am grateful to my noble and learned friend. I thank him for his remarks about my ingenuity which is matched only by his ability to expand upon the efficacious nature of Clause 33. I am grateful to him for the indication he gave. I accept that Amendment No. 53 is an attempt to raise the issue of the primacy of powers, and I am grateful for his confirmation that that will be a matter for Parliament.
I am grateful also to my noble and learned friend for the indication of the breadth of Clause 33 in relation to legislative proposals with regard to amendments and draft Bills, and the opportunity to have a creative relationship with Parliament in that whole area. I hope that the noble Lord, Lord Crickhowell, as always, will be part of that creativity. I thank him for his contribution to the debate. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 to 51 not moved.]
Clause 33 [Consideration of matters affecting Wales]:
[Amendment No. 52 not moved.]
[Amendment No. 53 not moved.]
Clause 34 [Staff]:
Lord Crickhowell Lord Crickhowell moved Amendment No. 54:
Page 21, line 5, leave out subsection (2) and insert—
("(2) Service as a member of the Assembly's staff serving the Assembly First Secretary, the Assembly Secretaries and the Executive Committee shall be service in Her Majesty's Home Civil Service.
(2A) Staff serving the Presiding Officer and the Deputy Presiding Officer, clerks and staff serving the subject committees and other committees (but not the Executive Committee), and other servants of the Assembly, may be either members of Her Majesty's Home Civil Service or employed by the Assembly as it considers appropriate.").
The noble Lord said: My Lords, we come now to the subject of the staffing of the assembly. It is a matter that was raised in Committee. Amendment No. 55 in the names of my noble friends Lord Roberts of Conwy and Lord Mackay of Ardbrecknish raises the issue in the form in which I did in Committee.
I have sought to widen the argument in Amendments Nos. 54 and 56 for reasons that I will explain. Since we started dealing with the Bill we have, of course, had the change in the Government's intentions as to how the assembly should operate. We are now, effectively, to have a Cabinet-type structure. That raises the issue to one of greater importance than may have been the case at the start.
The assembly's staff will come from the Welsh Office. At present, former Welsh Office staff will serve the assembly, the executive committee, the first secretary, the other secretaries and the cabinet, but other staff will have the job carried out by clerks in the clerk's department, the speaker's department, and so forth. We need to have different staff to do different jobs. That was a point raised at the last Welsh Questions, interestingly enough, in the other place by Mr. Rhodri Morgan who argued that there should be staff to look after the assembly in its role as a debating chamber and its committee work separate from the staff who serve the executive. The Secretary of State acknowledged that there would be a need for a distinction between the staff, but he suggested that that would simply be by some slight separation of civil servants. In an earlier debate, there was talk about Chinese walls being erected.
I then took a look at the Scottish Bill. I shall not argue that the Welsh assembly will need quite the scale of arrangements that are necessary in the Scottish parliament. The Scottish parliament will deal with legislation. Therefore the clerks will have a different, more formidable role and there will probably be a need for more people with different qualifications.
I confess that I wanted to raise the issue as one of principle which we could debate. Therefore, in tabling my amendments I did not want to choke them up with many provisions about employment conditions and pensions and add many schedules. I have taken from the Scottish legislation two matters of principle that I wish to raise. They seek to establish a situation in which the assembly secretaries, the executive committee and the first secretary shall be served by Her Majesty's Home Civil Service. But I want to give discretion to the assembly to take on other staff who may be employed on other terms and conditions. They may or may not be members of the Home Civil Service. It is not for us to decide whether they should be.
I am doing what I have been urged to do throughout the passage of this Bill by Ministers and the noble Lord, Lord Elis-Thomas; that is to leave it all to the assembly. However, we need to recognise the fact that there may need to be staff who are not members of the Home Civil Service. We need to have arrangements in place which provide for the assembly to take on clerks and other necessary staff. Indeed, in Amendment No. 56 I argue that there shall be a clerk to the assembly and an office of the clerk and that it should be properly staffed.
There is one other reason for the difference between the solution I have offered in the amendments and that adopted in the Scottish Bill. The Scottish parliament is not a corporate body and therefore a corporate body has to be created to employ these people. Earlier today, we had a long debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. As a result, we are all much better informed about corporate bodies and their powers. The Welsh assembly is to be a corporate body and therefore I do not believe there is a need for the separate arrangements which are contained in the Scottish Bill.
My amendments seek to raise the question of principle and put the proposition to the Government. I have not sought to draft a complete set of what were bound to be technical amendments because that is a job for the Government. If the Government were to accept the principles which I am enunciating they would no doubt bring forward amendments on Third Reading. I believe that the assembly needs to be in a position where it can employ clerks and others who may not be members of the Home Civil Service and there needs to be a clear distinction between those who will serve the executive and those who will serve the assembly and its committees. I beg to move.
11 p.m.
Lord Roberts of Conwy: My Lords, my noble friend Lord Crickhowell is absolutely right to point out that one of the most blatant differences between the Scotland Bill and the Welsh Bill is the clear provision made in the Scotland Bill under Clause 20 for the presiding officer and his corporate body to appoint staff to serve the parliament per se and for the Scottish executive to have its own separate and distinct civil service under Clause 41. There is no such provision for separate staffing for the Welsh assembly and the executive in the Government of Wales Bill.
My noble friend raised the point on Second Reading and, in his absence, I reiterated the key points in Committee. We did not receive a satisfactory reply from the noble and learned Lord the Solicitor-General when he said:
"I do not believe that it is right or necessary to prescribe in statute how the staff of the assembly should be organised".—[Official Report, 1/6/98; col. 327.]
It is done in the Scotland Bill and clear for all to see.
My noble friend referred to the Official Report and oral Questions to the Secretary of State for Wales last Wednesday, 24th June, when he replied to a Question from Mr. Rhodri Morgan, Cardiff West. They clearly did not see eye to eye on that issue. Mr. Morgan sees the need for staff to serve Back-Benchers in the assembly while Mr. Davies hopes:
"that an Opposition mindset does not develop in the assembly".
Nevertheless, he went on to say:
"However, my hon. Friend is partly right to say that there will be a need to set up a Department that is broadly equivalent to the Department that you head, Madam Speaker".—[Official Report, 24/6/98; col. 1036.]
792
Therefore, I think that the Secretary of State should make up his mind on this issue before the assembly does it for him.
Lord Elis-Thomas: My Lords, I was not going to get excited about this issue but, as the noble Lord will remember, amendments were tabled in Committee about making the role of presiding officer on that model a guardian of the rights of members who are not part of the executive. There is merit in that approach. The noble Lord, Lord Crickhowell has suggested another approach; namely, creating the role of clerk.
However, both proposals come back to the issue of separation of the activity of administration as part of the executive and the executive committee, and the role of the members of the assembly generally and their rights, privileges and opportunities.
In particular, with regard to the supply of information and active participation in the role of the body, and reverting to the earlier debate at the beginning of our proceedings today to which the noble Lord, Lord Crickhowell referred, the notion of a corporate body which has responsibilities vested in itself and shares or delegates those responsibilities internally on the basis of accountability clearly applies to the executive notion. It applies also, in a very important way, to the rest of the body in that the supply of information and the opportunity for scrutiny are matters which need to be cared for.
I have not read what Mr. Ron Davies said in the other place but I am sure I agree with what he said about an oppositional mind-set. It is equally important that we do not have a Crown in Parliament mind-set in the assembly in what is not a Crown in Parliament type body in that it is a corporate body which shares responsibility. Therefore, on that basis I hope that we can have assurances from the Minister that, whether it is a clerk of the assembly or a presiding officer, there is a way of dealing with the issue of the spread of information and the guarantee of the democratic movement of the body, as it were, alongside the executive function, towards which I believe my non-belligerent colleague, the noble Lord, Lord Crickhowell, was moving in his amendment. I am grateful to him for moving it.
Lord Falconer of Thoroton: My Lords, these amendments concern the support structure of civil servants who will serve the assembly. I am grateful to the noble Lords, Lord Crickhowell and Lord Roberts of Conwy, for giving us an opportunity to debate what is an important issue. I recognise also the genuine concern of the noble Lords, Lord Crickhowell, Lord Roberts of Conwy and Lord Elis-Thomas, all of whom are concerned to ensure that the assembly is served well by its staff so that it can be most effective.
Perhaps I may set out briefly how the Bill presently deals with the problem. Clauses 34 and 63 ensure that the permanent secretary remains responsible for the management and structure of the officials who will deliver the objectives of the assembly. The Home Civil Service will deal with the different roles and responsibilities of the executive of the assembly or its

793
committees with impartiality and independence. The structure which supports all parts of the assembly will reflect this.
Amendments Nos. 54 and 55 would create different groups of staff within those appointed by the assembly. This would depart from the principle that all staff of the assembly will be members of the Home Civil Service and the principle that the assembly is a single body. Amendment No. 56 would create a separate office of clerk to the assembly, which would serve the assembly and its committees, whose staff might or might not be members of the Civil Service.
Most of the staff of the assembly will serve the assembly secretaries and executive committees, developing and implementing the policies and functions of the assembly. In practice, staff will have dedicated roles to carry out particular functions, which is the same arrangement as applies today. The office of the presiding officer, which will provide support for assembly committees and safeguard the rights of individual members, will need to be seen as independent from the executive. I think we are all agreed in relation to that.
However, this does not mean we believe that this is best achieved by separating the office from the main body of staff. The organisation of the assembly's civil servants will need to be capable of ensuring the efficient and effective delivery of the assembly's standing orders. This may change in time, and there is a compelling need for flexibility so that the changing needs of the assembly may be met.
The noble Lord, Lord Crickhowell, has suggested allowing the assembly to decide which members of the staff would be members of Her Majesty's Home Civil Service. That would breach the fundamental principle that the national assembly shall be a single body corporate, with one group of staff. These amendments would restrict the ability of the permanent secretary to meet the needs of the assembly. In particular the statutory requirement to create a separate office of clerk to the assembly would circumscribe the responsibility of the permanent secretary to set up the most effective and efficient structure to respond quickly to the assembly's requirements.
The amendment would also reduce the benefit to the assembly gained by allowing staff to develop their skills by experiencing both policy development and the different challenges of supporting members and committees. There are many benefits a poacher may bring when he becomes a gamekeeper, and vice versa. The position is, I believe, different from the Scottish parliament, for the reasons given by the noble Lord, Lord Crickhowell. That is a much more powerful body in terms of being able to produce primary legislation and one where other requirements are needed.
We believe this is the most sensible arrangement. We believe that these are arrangements whereby the independence required from the office of the presiding officer to support the members of the assembly will be preserved. We believe this is the best way to provide
794
the effective implementation of the assembly. I hope I have said enough to persuade the noble Lord to withdraw their amendments.
Lord Crickhowell: My Lords, Government Ministers, whenever they have a weak case, repeat several times the phrase "we believe". The trouble is that I do not believe and I do not believe that the case was made out. We heard from the noble Lord the Minister that there was a compelling need for flexibility. I agree. Therefore I do not see why we should fix at the outset the unalterable fact that all the servants of the assembly are to be members of the Home Civil Service. He told the House that it was a fundamental principle that there should be one body corporate, but he spent quite a lot of his speech acknowledging that there were to be two different components which would need different staff, who would have to be separated.
Again and again we have been told that we should not pass amendments to this Bill which impose a rigidity of structure and make it impossible for the assembly to set up sensible arrangements when it has considered the matter. Yet, to use the Minister's words, we believe that they are in this case imposing just that kind of rigidity. No one has a greater admiration for the services provided by the civil servants in the Welsh Office than I. They have served me astonishingly well and they bore with me with great patience for some eight years. But I do not believe that they have every quality or every skill. Indeed, I believe that qualifications may be required which are not found within the Home Civil Service.
Again, at this time of night, it is clear that we cannot divide on the matter. Nevertheless, it is extremely unsatisfactory that, having admitted in both Houses of Parliament that special arrangements will be needed, we get no clarification at all from the Government about how these things will be handled. Moreover, we have stuck into the Bill the shackles which will tie the hand of the assembly in the future and make it impossible for it to decide what is necessary. I may well return to the matter on Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 and 56 not moved.]
11.15 p.m.
Clause 41 [Agency arrangements and provision of services]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 57:
Page 23, line 9, after ("any") insert ("private contractor,").
The noble Lord said: My Lords, it seems rather odd that Clause 41 should allow arrangements to be made,
"between the Assembly and any relevant authority",
for the performance of functions and the provision of services but that the private sector should be excluded. We know full well that the sector is a considerable performer and provider in that field. This is a probing

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amendment. Is there is reason why this sector is excluded, or is it simply that private companies are not, strictly speaking, "authorities"? I beg to move.
Lord Falconer of Thoroton: My Lords, Clause 41 deals with two issues. It allows the assembly to arrange with other public bodies for them to exercise functions on its behalf or to undertake functions on behalf of other public bodies; and it makes provision for professional and technical services one to the other.
As I understand it, the amendment seeks to probe whether the assembly will be able to seek private sector involvement for the discharge of its functions. Perhaps I may say at the outset that there is nothing in the Bill which would preclude the assembly from considering whether to contract from the widest range of sources for the provision of services and supplies in relation to its functions.
While private sector firms can do anything within their competence, public bodies are constrained in the provision of services to what is authorised by legislation. Thus, with the establishment of the assembly, powers need to be provided to enable public bodies and the assembly to provide services to one another. That is the purpose of Clause 41. As private contractors already have the ability to contract with the assembly without the need for legislation, I suggest to the noble Lord that his amendment is inappropriate. I therefore invite him to withdraw it.
Lord Roberts of Conwy: My Lords, I am grateful to the noble and learned Lord for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Different exercise of functions by Assembly]:
[Amendment No. 58 not moved.]
Clause 43 [Construction of references to Ministers and departments]:
[Amendment No. 59 not moved.]
Clause 44 [Parliamentary procedures for subordinate legislation]:
[Amendment No. 60 not moved.]
Clause 45 [Laying of reports and statements]:
[Amendment No. 61 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 62:
Page 25, line 30, leave out ("subsection (1)") and insert ("this section—

(a) references to a report or statement include any other document (except one containing subordinate legislation) in the case of which any enactment makes provision for laying before Parliament or either House of Parliament, and

(b)")

The noble Lord said: My Lords, Amendment No. 62 is intended to widen the ambit of Clause 45. It is simply intended to make it quite plain that reference to reports or statements includes any other document contained in an enactment required to be laid before Parliament.
At present, reports and statements must be laid before the assembly where they are currently required in an enactment to be laid before Parliament. However, there are other types of document which are frequently required to be laid before Parliament—for example, the order-making power in Section 57(7) of the Land Drainage Act 1991, requires the Secretary of State to lay before Parliament,
"particulars of the matter in respect of which the appeal was made and of the reasons for his order".
It is arguable—and doubtless, therefore, would be argued—that these documents are not covered by the present clause. The amendment has been brought forward to make plain what is intended in Clause 45 so that other forms of document are included within the terms "report" and "statement". I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 63 and 64 not moved.]
Clause 46 [Regulation of procedure]:
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 65:
Page 26, line 8, leave out subsection (6) and insert—
("(6) The Assembly shall establish a procedure committee which may from time to time consider any proposals for revision of its standing orders or other procedures and report to the Assembly.
(7) Any revision in procedure may be implemented by a simple majority of members supporting the motion.").
The noble Lord said: My Lords, this amendment constitutes a new initiative—although rather late in the day—in relation to procedure. I move it with some delight after the statement made by my noble and learned friend the Solicitor-General on an earlier amendment about the compelling need for flexibility. I believe that the whole area of standing orders and procedure needs to be revisited.
On what must have been my tenth reading of the Bill I realised that in another place, and particularly in this House, we have generally benefited—or not benefited, according to one's point of view—from being a relatively self-regulating Chamber whose procedures are capable of reform within the Chamber itself. We are creating a devolved assembly which will be bound hand and two-thirds foot to the standing orders as set down by commissioners, as described in the Bill—and accepted by the assembly upon the advice of commissioners and the recommendation of the Secretary of State in the opening session—and subject to a two-thirds majority for revision. Even at this late hour I believe we should explore why this is the case and why under the Bill the assembly is not trusted with the ability to regulate itself in the area of its standing orders by the device of a procedure committee. As I said, I believe this issue is worth exploring. I await with bated breath, of course, the Minister's response. I beg to move.
Lord Williams of Mostyn: My Lords, as has been indicated, Clause 46 provides in subsection (6) for standing orders to be amendable only by a two-thirds majority. I dare say the assembly will want a procedure committee. I believe that that is a matter for the assembly to decide in due course. As I say, it is quite likely that it will want to have such a committee. The

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proposed new subsection(7) in the noble Lord's amendment raises a quite different point. We believe that standing orders should be amended only by a two-thirds majority. We think that is important. We do not believe that standing orders should be the plaything of a party with only a bare majority in the assembly. The provision in the Bill therefore is deliberately intended as a protection for the interests of minority parties. It ought to produce stability. It ought to mean that standing orders can be changed only on a two-thirds basis. As I said, there is likely to be a procedure committee. That is a matter for the assembly. It is not a case of not trusting the assembly; it is a case of implementing safeguards of a well-known kind to protect minority interests and to prevent the dominance of a bare majority.
Lord Elis-Thomas: My Lords, I am grateful for the Minister's response. I give him an absolute assurance that were I or members of my party part of a bare majority we would not make procedure a plaything. I certainly accept his indication that there will be a procedure committee. That is a positive step. I appreciate that the two-thirds majority forms part of the inclusivity strategy of the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Assembly First Secretary and Assembly Secretaries]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 66:
Page 27, leave out line 29 and insert ("Pennaeth").
The noble Lord said: My Lords, there is clearly something to be said for trying to devise a Welsh title for the chief executive officer of the assembly. After all, most countries that have a parliament or an assembly of the kind proposed for Wales and have their own language have appropriate native titles, some of which we have heard in the course of our debates in your Lordships' House. The Norwegian Storting, or parliament, has been mentioned; so has the Irish Taoiseach, the equivalent of the Welsh Tywysog, or "prince", the title usually given to the Prince of Wales. I depend upon the noble Lord, Lord Elis-Thomas, for the interpretation of Taoiseach. There were not many takers for my suggestion of "Premier" or "Pen Weinidog" for the first secretary when I suggested it in Committee. I hope there will be more enthusiasm for my new suggestion of "Pennaeth", meaning "chief' or "chieftain", but not in any old-fashioned sense. It is an apposite, modern and valid word for the post of first secretary.
I would remind the House that the Welsh titles for various bodies have caught on—Cadw, Welsh historic monuments, Tai Cymru, housing for Wales. I should be very sorry indeed to see this opportunity missed of giving a Welsh title to the first secretary of the Welsh assembly, Cynnlliad. I beg to move.
Lord Elis-Thomas: My Lords, the noble Lord, Lord Crickhowell, will forgive me for being completely belligerent on this issue. I have spent most of my political life trying to convert my own party into a
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bilingual organisation. Thank goodness, and thanks to the Secretary of State, we shall soon have before us a Bill of registration of political parties which will make this legal.
The noble Lord, Lord Roberts of Conwy, as it were, sold his own hospital pass when he used the words "native" and "chieftain" in relation to these titles, and when he referred to Taoiseach and its use in these contexts.
Far be it from me to criticise the Government of Ireland or our colleagues on the Irish Language Board, but I think they would be the first to accept that the Government of Ireland is not an entirely bilingual organisation and that the use of Irish language forms has more to do with a certain nationalistic fetishm relating to linguistic issues. We are not about that in Wales. We are a bilingual nation, and we have created a bilingual institution in the national assembly by law. We shall come to some of these issues later in our debates on the Bill. The notion of having a chieftain may relate to our earlier debate. If Mr. Ron Davies is to be both Secretary of State and first secretary, he should perhaps indeed be a chieftain—if not a Chieftain tank!
The serious point is that I am entirely opposed to monolingual nomenclatures for what are, and have to be, absolutely clearly identifiable and intelligible descriptions for jobs. Language is about efficacious translation of equality and flexibility. I want everyone world-wide who understands the English language to know that a first secretary of a national assembly for Wales is just that, not some native kitsch.
Lord Falconer of Thoroton: My Lords, I do not want to become enmeshed in the merits or otherwise of a particular word. However, I doubt that this is the right word; or indeed that it is right or desirable to have a Welsh only title.
Noble Lords will be aware that Clause 47 provides for equal treatment of English and Welsh in the assembly's business. I fear that there is a danger that adopting a Welsh only title for the assembly's leading figure would contravene the spirit, if not the letter, of the clause.
Amendment No. 67, which is different, would allow the standing orders to prescribe an alternative title to Assembly first secretary. I am sure noble Lords will be surprised to hear that this is one matter—perhaps the only one—which I do not think should be left to standing orders or to the assembly. Such provision would allow the assembly to be headed by a prime minister, a president, or something even grander and more unlikely. As the noble Baroness, Lady Carnegy of Lour, pointed out in Committee, this would introduce a real risk of misleading the electorate as to the status of the assembly and its place within the Union.
However, I do not think we should delay too long on this matter. Popular usage eventually formulates its own titles. My right honourable friend the Prime Minister is very rarely referred to as the First Lord of the Admiralty, and my right honourable friend the Foreign Secretary is not often called the Secretary of State for Foreign and Commonwealth Affairs. Anything provided in the Bill will, I am sure, be transformed by the same

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process into something more friendly to popular parlance—although I do not presume to guess what it might be. "Assembly first secretary" may not appeal to the noble Lord, Lord Roberts. However, I regret that he has not found a better alternative. I hope, therefore, that he will withdraw his amendment.
Lord Roberts of Conwy: My Lords, the noble and learned Lord the Solicitor-General referred to the Prime Minister as the First Lord of the Admiralty. He meant First Lord of the Treasury.
Lord Falconer of Thoroton: My Lords, I apologise for that mistake. Clearly the usage has fallen off.
Lord Roberts of Conwy: My Lords, I do not believe we need an official record of this interesting interchange as to the Prime Minister's role in life, be it the Admiralty or the Treasury.
In view of what the noble and learned Lord said, and in view of the fact that there are always three tries for a Welshman, I shall withdraw the amendment and hope to return to it at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 to 70 not moved.]
11.30 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 71:
After Clause 53, insert the following new clause—

DISCHARGE OF EXECUTIVE FUNCTIONS OF ASSEMBLY
("(1) The executive functions of the Assembly shall be carried out by the Assembly Secretaries and by officials acting on their behalf.
(2) In the discharge of all such functions and otherwise, Assembly Secretaries shall be accountable to the Assembly for their actions and those of officials acting on their behalf.
(3) The Assembly may by resolution of no confidence at any time require any Assembly Secretary or Secretaries to resign.
(4) The standing orders of the Assembly shall provide for any motion of no confidence to take precedence over all other business and shall specify a reasonable minimum period of debate on such a motion.").
The noble Lord said: My Lords, we welcome the Government's decision to set up a Cabinet structure, but the ultimate decision whether to operate the system fully is left to the assembly. That is because functions are transferred to the assembly, which then establishes committees with responsibilities in various fields under Clause 57(1). At the same time there is established an executive committee comprising among others assembly secretaries who are allocated accountability in the committee fields.
The position is made clear in Clause 56(5) where accountability is defined, basically, as answering to the assembly for the exercise of functions in the various fields. But the line between the executive authority of the assembly's secretary and his committee is not clear cut. It is not easy to wrap one's mind around the distinction between the committee's responsibility and the secretary's accountability.
What happens if the committee takes action of which the secretary disapproves? It is not a problem in the Scotland Bill or here at Westminster where the role of Ministers is clear and distinct from the role of Parliament. Ministers carry both responsibility and accountability here, and of course there are Cabinet committees to help them. However, at the end of the day they are on their own at the Dispatch Box.
The aim of our new clause is to clarify the situation and activate the Cabinet structure. It states unequivocally that,
"The executive functions of the Assembly shall be carried out by the Assembly Secretaries and by officials acting on their behalf',
and that they will be accountable. Finally, I am bound to say that the mix of committee and Cabinet system, and the resulting uncertainty, could very well cause problems in practice and prove damaging to the working of the assembly. I beg to move.
Lord Falconer of Thoroton: My Lords, in this amendment the noble Lord, Lord Roberts of Conwy, returns to a matter he previously raised in Committee. As I said then, the Government support much of what lies behind this amendment and I regret that the assurances given then did not fully assuage the noble Lord's concerns.
There are a number of points here. Implicit in the noble Lord's amendments is what one might call a "ministerial" model of decision-making with individual assembly secretaries exercising executive power. While we naturally support a Cabinet system for the assembly, we do not support entrenching it permanently on the face of the Bill, which is what this amendment would do. The assembly must be free to review and, if needed, amend its operating structure in the light of experience.
Nor do I think the notion of assembly secretaries exercising executive functions directly squares with the status of the assembly as an indivisible body corporate. In practice, of course, they may well carry out functions within their portfolios, but action will still formally be taken in the name of the assembly itself. I therefore fear that the noble Lord's amendment would only introduce confusion into assembly secretaries', and the assembly's, legal status.
I am happy to repeat the assurances given to the noble Lord in Committee about votes of no confidence. I agree that provision needs to be made for debating such motions: representative bodies large and small are able to do so, and they are a vital part of democratic accountability. However, this is surely more a matter for the assembly's standing orders than for the face of the Bill. In due course, the national assembly advisory group will come forward with advice on handling motions of no confidence, which will then be reflected in guidance to the commission drawing up the assembly's first standing orders. I am happy to give the noble Lord a categoric assurance on that point. As to the standing of the individual committees, all the subject committees, under Clause 57, will have a make-up which broadly reflects the balance of parties in the assembly. So obviously the first secretary and the assembly secretaries will be in a different position from

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the members of the committee. They will be much more like members of the Cabinet in the traditional Westminster model.
I hope that deals with all the points the noble Lord has raised and that, in the light of the assurances I have given, he will feel able to withdraw the amendment.
Lord Roberts of Conwy: My Lords, I am bound to tell the noble and learned Lord that, despite his assurances, I am still very concerned about the mix, as I call it, of cabinet style and committee style government within the assembly. This will cause confusion and difficulties when decisions and actions need to be taken as to who really takes the initiative and ultimately carries full responsibility. I know it is stated that the committees carry the responsibility and that the assembly secretaries will bear the accountability. Nevertheless, actually to work such a system in practice will be difficult. But, having received the Minister's assurances and with a view to considering them and indeed the entire matter further, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 [Sub-committees]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 72:
Page 28, line 15, leave out ("the same party") and insert ("parties which are represented on the executive committee").
The noble Lord said: My Lords, with this amendment are grouped three amendments in my name and also amendments in the name of the noble Lord, Lord Williams of Mostyn. This is an interesting subject. We almost stumbled into it, thanks to a probing amendment from the noble and learned Lord, Lord Simon of Glaisdale. I thought there was a serious point but the Minister did not seem to see it. I was not sure whether that was my fault or the Minister's rather clever device when he does not want to engage in a debate but just passes you like the proverbial ship in the night, which I think is what he did in the debates about the European Union and representation there. The noble Lord, having passed like a ship in the night, actually rethought the position and was kind enough to write to me and say that, while he did not think it would ever happen, perhaps I did have a point. He has brought forward amendments which go half-way to meeting my concerns.
The Bill as it stood envisaged one party—the largest party—forming the executive. I think it was drafted on that basis. There is no doubt in my mind about that. It did not envisage coalition government, despite the fact that Ministers talk about it quite a lot, and it did not envisage the two scenarios of coalition government; namely, largest party and another or, alternatively, two of the smaller parties, not including the larger party, forming the government. Amendment No. 72 deals with Clause 55(1), which is about sub-committees. Subsection(3) states:
"A committee of the Assembly, other than the executive committee, shall not elect as members of a sub-committee Assembly members who all represent the same party".
That seems to be very good.
Going back to the point that I made, it seems to me that we should also say, "do not represent all the parties which are represented in the executive committee". I do believe that the Government mean that the minority and the opposition parties should be represented as well as the governing party. I believe that my amendment achieves that.
Amendments Nos. 84 and 85 refer to the chairmen of the scrutiny committees and Amendment No. 88 refers to the chairman of the audit committee. The Bill, as drafted, envisages the largest party equalling the executive and, rightly, as it is drafted, it ensures that the chairmen shall be drawn from the other parties and not from the largest party.
The problem is that in a 60-seat assembly, the largest party might have, say, 22 seats. Two of the other parties have 15 and 12 seats. They combine to make 27 seats and form the government of the assembly, albeit a minority government. The smallest party has 11 seats. One can play about with the figures. I am sure that your Lordships see very quickly my point that the second and third party and, indeed, other combinations, could form the government and the largest party could form part or all of the opposition.
The Bill, as written, would have the largest party not being able to take any of the chairmanships and would frustrate what the Government actually intended; namely, that the executive should not dominate the committees by having the chairmanships. My amendment would stop the coalition partners, if they were the smaller parties, from chairing. In that scenario they would ensure that the largest party would be able to chair. I do not know if the Minister goes that far.
The other scenario of the largest party combining with one of the other smaller parties to form the executive would also create a problem. In those circumstances one would want the chairmanships to be held by the people in the parties outwith the executive.
My amendment says very clearly that, if a party is represented in the executive, then its members shall not be considered as eligible to chair the committees. They may not be chaired by a member who represents,
"a party which is also represented on the executive committee".
The Minister has gone a little way towards me. He said that they should not be chaired by a member who represents the largest party. That still means that the smaller party in the executive could be chairing the committees. I do not believe that that is consistent with what I believe was the original drafting intention.
Having said that, I welcome the fact that the noble Lord, Lord Williams, has moved in some way, but I should like him to move that bit further. He may say to me, "What happens if there is a grand coalition of all the parties?" Dare I say to him that I believe that a suitable amendment could be found to deal with that proposition. It is slightly unlikely, but I fully concede that one ought to deal with it. I am really much more concerned about a situation where two parties are coalition partners and another two parties outside the coalition form the

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opposition. The intention is that it is on those parties that the chairmanships should fall and not those forming the executive. I beg to move.
Lord Kenyon: My Lords, there are two issues represented by this group of amendments. The second issue has been very adequately covered by my noble friend Lord Mackay of Ardbrecknish; namely, the membership and chairmanship of the scrutiny committees and the audit committees. But the first issue is Amendment No. 72, which relates to Clause 55. That deals with the actual membership of the sub-committees themselves.
I believe that the intention in the Bill is that the membership of the sub-committees should be broadly representative of the political balance in the whole of the assembly. Clause 54(2)(b) states,
"as far as practicable, the balance of the parties in the Assembly is reflected in the membership of the committee".
I should like to know why that is not repeated in Clause 55(3) so that the political balance remains the same on the sub-committees. It does not seem to me that my noble friend Lord Mackay of Ardbrecknish is going quite far enough in that respect.
11.45 p.m.
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Mackay, raised these points in Committee. I did not think then—I am not sure that I think it now—that his concerns were justified, but I have written to him saying that we shall do our best to meet them. The effect of our amendments would be to prevent the largest party of representation on the executive committee from taking the chairmanships of the scrutiny and audit committees. Smaller parties with representation on the executive committee could still take them. It would he possible to prevent that by provisions in standing orders. If we went down the road suggested in Amendments Nos. 84, 85 and 88, the "grand coalition", to which the noble Lord referred, would lead to no one being able to assume any chairing responsibility of any sort. I believe that our tranche of amendments would meet the noble Lord's reasonable concerns.
Amendment No. 72 would not permit the establishment of any subcommittee in the circumstances of a coalition of all the parties. That is unlikely, but we think that it would be better not to include in the Bill a provision which depends on the unlikely not happening.
We think it proper to adopt the standing order that subcommittees must include at least one member from a party not represented on the executive committee. I am happy to take that question on board.
I am not sure that I have fully grasped the point made by the noble Lord, Lord Kenyon, but that is undoubtedly my fault. It may be because we have sat here for quite some time. Perhaps the noble Lord will allow me to consider this point and write to him, which I promise to do as promptly as I may.
Lord Mackay of Ardbrecknish: My Lords, I am sure that my noble friend will be content with that
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response. My noble friend has a point and he has suggested a better way to deal with this matter than I have proposed, so I, too, shall study it. Ironically, earlier today—a lot earlier!—I envisaged certain electoral circumstances which the Minister told me were totally unlikely and he said that we did not therefore need to deal with them. Now I am told that we cannot possibly change the Bill in the way that I suggest because there might possibly be the unlikely event of a grand coalition. The Minister is trying to have it both ways, but at this time of night, I am hoping for only one way; namely, one way home to my bed! For that reason, I am content to beg leave to withdraw my amendment, to welcome the Minister's amendments, as far as they go, and to thank him for accepting that there was a bit of a problem here.
Amendment, by leave, withdrawn.
Clause 56 [Executive committee]:
[Amendment No. 73 not moved.]
Clause 57 [Subject committees]:
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 74:
Page 29, line 45, at end insert—
("(9) Each subject committee shall be responsible for monitoring the performance of the non-departmental public bodies within the fields covered by that subject committee.
(10) Each subject committee shall be responsible for deciding on any appointments which may be made to the boards of non-departmental public bodies.").
The noble Lord said: My Lords, I should like to home in briefly on the second subsection of this amendment which relates to responsibility for the appointment of members of NDPBs and the responsibility being laid on subject committees. At col. 376 and onwards in Committee (3rd June), we discussed a number of issues in relation to the role of public bodies and the assembly and I received a number of useful assurances.
However, perhaps we did not deal in sufficient detail with the question of whether there would be a role for subject committees in agreeing appointments to NDPBs. That proposal is very much in line with the Nolan and Neill procedures for such bodies in that it opens them out to selection and appointment procedures beyond individual secretaries. In ensuring transparency and accountability, it would be appropriate that the government of the day in the assembly, the executive, should not be the sole source of appointments to NDPBs, but that the subject committees should have a role. I beg to move.
Lord Williams of Mostyn: My Lords, we discussed this matter at some length at Committee stage. My response remains the same. I agree with the sentiments that the noble Lord then expressed and has repeated briefly this evening. One wants a creative relationship between subject committees and the non-departmental public bodies. He mentioned his particular public body; the Welsh Language Board.
I entirely agree with the noble Lord. It is for the assembly to put in place arrangements that provide proper democratic accountability. After all, there are

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provisions to allow subject committees to summon the members and staff of public bodies to give evidence and provide documents.
As to the subject committees, that is still under consideration by NAAG. I can assist your Lordships and in particular the noble Lord, Lord Elis-Thomas. I believe that there are likely to be recommendations involving the committees in the procedures about which we have been speaking. I cannot pre-empt that work. NAAG is coming to the end of its work. I believe that what it recommends will be pleasing and satisfactory to the noble Lord. I cannot give him an absolute reassurance. I understand his concerns. Obviously, this is a very important aspect, for the reason that the assembly was set up in the first place. I hope that what I have said is helpful.
Lord Elis-Thomas: My Lords, as always, what the Minister says is helpful but it is particularly so in this instance. I look forward to the NAAG report on this issue and the response to it. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 [Subordinate legislation scrutiny committee]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 75:
Page 30, line 2, leave out ("subordinate legislation") and insert ("relevant Welsh subordinate legislation.
(1A) For the purposes of this section "relevant Welsh subordinate legislation" is any subordinate legislation—

(a) which is made or proposed to be made, or

(b) which, or a draft of which, is (or but for paragraph 2(4) of Schedule 7 would be) required to be confirmed or approved,

by the Assembly (whether or not jointly with a Minister of the Crown or government department).").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 75. This group comprises Amendments Nos. 75 to 82 and 93 and 94. Of those, Amendments Nos. 75 to 79 inclusive and Amendments Nos. 81 and 82 are government amendments. I shall speak to those first and in closing deal with any other amendments in this group that may be moved or referred to. This is the first of four sets of amendments that we tabled in response to points made by noble Lords at Committee stage. These amendments effect a restructuring of Clause 58. Earlier I placed in the Library a copy of a letter to the noble and learned Lord, Lord Simon of Glaisdale, which shows how the clause would appear if these amendments were adopted.
The assembly will have important powers to make subordinate legislation. The Government's clear view is that it should be able to do this without excessive nannying oversight by Parliament. For this reason, Clause 44 of the Bill generally disapplies parliamentary procedures for assembly subordinate legislation. Clause 58 then requires the assembly to put in place its own scrutiny procedures.
Most assembly subordinate legislation will fall into the category of assembly general subordinate legislation which is defined in subsection (6) of Clause 58 as
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amended by Amendments Nos. 78 and 79. The subordinate legislation scrutiny committee will have specific responsibilities in respect of assembly general subordinate legislation. These are set out in subsection (4), as amended by Amendment No. 76. These responsibilities amount to a species of internal review as against the external scrutiny provided now in respect of ministerial subordinate legislation by the Joint Committee on Statutory Instruments.
However, the subordinate legislation scrutiny committee may also be given responsibilities in respect of the general category of "relevant Welsh subordinate legislation" which is defined in Amendment No. 75. This category includes assembly general subordinate legislation, but goes wider to take in, for example, orders made jointly with a Minister of the Crown. The assembly could give scrutiny responsibilities to its scrutiny committee in respect of such orders. I think that this meets a concern expressed at Committee stage by the noble Lord, Lord Mackay of Ardbrecknish, and my noble friend Lord Prys-Davies. The remaining Amendments Nos. 77, 81 and 82 are drafting amendments to create the right structure for the clause.
I believe that the noble and learned Lord, Lord Simon of Glaisdale, has done the House a service in asking us to look again at this clause. We have done so and I hope that the House approves the result of that re-examination. I beg to move.
The Chairman of Committees: My Lords, in view of the references which the noble and learned Lord has made to the various other amendments being dealt with at the same time, I must point out to your Lordships that if Amendment No. 79 is agreed to I cannot call Amendment No. 80.
Lord Roberts of Conwy: My Lords, I speak generally to the amendments standing in our names. Clause 58(6)(c) excludes from the definition of assembly general subordinate legislation to be considered by the scrutiny committee what is described as subordinate legislation subject to parliamentary procedure. It is questionable whether that is right. Surely the assembly should be aware of such legislation and its implications for Wales.
With regard to Amendment No. 93, the first part of Clause 65 requiring an appraisal of the costs and benefits of complying with assembly subordinate legislation is excellent, especially as it is to be carried out before a draft is laid before the assembly. Subsection (2), which we propose to delete, promptly states that the appraisal need not be carried out if it is inappropriate in the circumstances or not reasonably practical. There are further sound provisions in subsection (3) requiring publication and consultation if the costs are significant. They too would be negatived.
Looking at the clause as a whole, what is the point of procedural requirements for subordinate legislation if they can be dispensed with so easily? This is a very bad clause. It undoes all the good achieved earlier and leaves

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open the possibility of some very arbitrary subordinate legislation produced by the executive without the approval of the assembly and very little scrutiny indeed.
Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Roberts of Conwy, made three points. First, he dealt with his Amendment No. 80. That amendment would delete the stipulation that orders which are subject to parliamentary procedure are not assembly general subordinate legislation. That cannot be right. As I said, Clauses 44 and 58 together assist us to distinguish between assembly orders, which are not subject to parliamentary procedure and which are called assembly general subordinate legislation, and other orders such as joint orders with Ministers of the Crown which will continue to be. Amendment No. 80 does not fit into that structure and I would ask the noble Lord to withdraw the amendment.
Amendments Nos. 93 and 94 raise important points about procedure. Clause 65, as presently drafted, imposes upon the assembly an obligation to undertake regulatory appraisals of its draft orders. However, Clause 65(2) allows the assembly to dispense with that if it would be inappropriate or it was not reasonably practicable to undertake them. Inappropriateness relates to the subject matter of the order. We are seeking to write into the Bill the existing administrative practice of holding regulatory appraisals in respect of many types of order but not all. For example, orders whose sole impact is on the public sector or which increase a statutory fee by a predetermined formula are not subject to regulatory appraisal now and it may well be that the assembly will not have appraisals of such orders in the future. There must be a let-out in the Bill to deal with that.
The not reasonably practicable test in both Clause 65(2) and Clause 67 which permits disapplication of procedural requirements relating to the making of assembly orders is primarily concerned with cases of urgency. For example, food safety orders may need to be passed very rapidly. It would obviously not be sensible to require the assembly to have to observe the full rigour of procedures appropriate when time is less pressing.
Your Lordships will see that Clause 67 allows for a revocation power so that any assembly member may, within 40 working days, seek to have withdrawn any order made under the urgency procedure. That is an important check on the use of the procedure. With that explanation as to why there are those let-outs to the regulatory appraisal and the reasonably practicable test, I hope that the noble Lord will see that they are sensible and will be minded not to pursue his amendments.
On Question, amendment agreed to.
12 midnight
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 76 to 79:
Page 30, line 7, leave out from ("any") to ("laid") in line 8 and insert ("proposed Assembly general subordinate legislation when the draft statutory instrument containing it has been").
Page 30, line 18, leave out subsection (5).
Page 30, line 22, leave out ("subordinate legislation") and insert ("relevant Welsh subordinate legislation within subsection (1A)(a)").
Page 30, line 24, leave out from beginning to ("any") in line 26 and insert—
("( ) not made or proposed to be made by an instrument in the case of which, or of a draft of which,").
On Question, amendments agreed to.
The Chairman of Committees: My Lords, this is probably unnecessary, but so that no noble Lord is taken by surprise I must point out that if Amendment No. 83 is agreed to I cannot call Amendment No. 84.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 81 to 83:
Page 30, line 28, at end insert—
("( ) The Assembly may not give to the subordinate legislation scrutiny committee responsibilities not relating to the scrutiny of relevant Welsh subordinate legislation.").
Page 30, line 29, leave out subsection (7).
Page 30, line 43, leave out from ("but") to end of line 44 and insert ("it may not be chaired by a member who represents the largest party with an executive role.").
On Question, amendments agreed to.
[Amendments Nos. 84 and 85 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 86:
Page 31, line 10, leave out from ("Act") to end of line 12 and insert ("a party is the largest party with an executive role if—

(a) an Assembly member representing the party is a member of the executive committee, and

(b) it is represented by more Assembly members than any other party represented by an Assembly member who is a member of that committee.").

On Question, amendment agreed to.
Clause 60 [Audit committees]:
The Chairman of Committees: My Lords, to avoid anyone being taken by surprise, I must point out that if Amendment No. 87 is agreed to I cannot call Amendment No. 88.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 87:
Page 31, line 24, leave out from ("but") to end of line 25 and insert ("it may not be chaired by a member who represents the largest party with an executive role.").
On Question, amendment agreed to.
[Amendment No. 88 not moved.]
Clause 61 [Regional committees]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 89:
Page 31, line 28, leave out from ("establish") to end of line 36 and insert ("regional committees to hold the Assembly First Secretary and Assembly Secretaries accountable for the exercise of their functions in each region.
( ) Each regional committee shall be responsible for an electoral region in effect at the last ordinary election.").
The noble Lord said: My Lords, the establishment of regional committees is important, as the Government realise, for the future of the assembly. Such committees

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can help assure people in different parts of Wales that the assembly is aware of their interests and is taking them into account. The people of Wales need reassurance at this time.
Clause 61 as drafted specifies only a committee for North Wales, which is not further defined geographically, and a committee for each of the other regions of Wales, also undefined as to areas and numbers.
These committees are committees of assembly members, not councillors or any other body that has had occasion to sub-divide Wales. The assembly members are elected by constitutency and electoral region, of which there are five. They are disparate in terms of physical geography but not in terms of population. I refer to the electoral regions. They could form the basis for assembly committees. They could also be adapted in the light of experience and be subject to boundary changes. But even as they are, they are a reasonable starting point. I fear that if all that is left to the assembly to sort out many will justifiably fear that the regional committee proposal was a last-minute bid to gain regional support within Wales during the referendum campaign.
The second key point is that if these committees are to be meaningful, they must be more than advisory. That is why our amendment proposes that the assembly first secretary and his fellow secretaries are held accountable to those committees for the performance of their functions within the areas served by the committees in the same way as they are held accountable to other committees of the assembly. All this amounts to a reasonable proposition in line with other proposals in the Bill for subject committees. The regional committees will be responsible for the overall performance of the assembly in their respective areas. The knowledge that these committees are to be established will serve to reassure many people in Wales. I beg to move.
Lord Elis-Thomas: My Lords, during our Committee stage I expressed my concern about the priority being given to regional committees by a number of your Lordships. Having reflected upon my statements since then, I find that I am entirely in agreement with myself, despite what the noble Lord, Lord Hooson, might make of that when he reads Hansard.
This amendment is particularly unworkable. The noble Lord, Lord Roberts of Conwy, appears to be second guessing the assembly function at different regional levels. The amendment makes secretaries doubly accountable both for the national delivery of their programmes and for the regional delivery in as yet unspecified regions. Times have moved on. The announcement in the other place and in this House only at the beginning of this week about the new regions for Objective 1 status of the European Union for statistical purposes indicates that as regards regions of Wales we must be flexible. I have always been opposed to the notion of creating a place called North Wales because I do not know where that is. Is it the coastal strip, or is it mid or west? Where is it? The whole question of regional committees, although that was part of the
810
debate in the referendum, has moved on. To try to re-establish an internal regionalism in a country of 3 million people with a double notion of accountability on the secretaries and the executive of the assembly is to place an unnecessary burden upon them.
The assembly will deliver new forms of national unity through diversity using the structure of existing local authorities. To create a doubly accountable regional committee over and above the current tiers of the new unitary authorities and over and above the activities of the NDPBs within Wales, including the WDA and its regional structure, is to create an incredibly structured and disorganised form of accountability within the country. I ask that the whole issue of internal regionalism and its divisive potential should not be flagged up so strongly by politicians who are seeking to curry votes, as I suggested in Committee, out of regional disparities and differentiation. The big issue we have to face has been displayed yet again by Regional Trends No. 33 published last week. It shows the overall income per head in Wales and the overall performance of the Welsh economy in relation to the rest of the UK and Europe. We should be mobilising ourselves in order to tackle those issues and not spend so much time on internal divisions and structures to balance between them.
Lord Stanley of Alderley: My Lords, I put my name to the amendment because in Committee I expressed concern that the regional committees would be "waffle shops" and have no influence. The noble Lord, Lord Williams, replied that if that were the case there would be no point in having them. Quite so; I could not agree more with the noble Lord.
However, I am not sure whether that reply agreed with my point that they were toothless wonders or whether the noble Lord did not mean me to take it in that way. I gained the impression from the noble Lord, Lord Elis-Thomas, that he was following a similar line of thought because, as he repeated tonight, the committees were in existence only for political reasons in order to encourage North Wales to vote for an assembly.
At least the noble Lord, Lord Williams, now has the chance to clear up this muddle, for, if he really believes that the regional committees will be able to influence the assembly and not be second, third or even fourth-class citizens, he must accept the amendment moved by my noble friend. It will at least give them a tooth, albeit a poor one.
Lord Thomas of Gresford: My Lords, I do not accept that the sole purpose of these provisions—to give North Wales its own regional committee and for there to be other regional committees—was simply to sell the concept of devolution.
One of the problems that we face in Wales, as we do in the United Kingdom, is the pull of the south east. In Wales, it is the pull of Cardiff, where the decision has been taken to site the assembly. As a North Walian, I have a very clear view of where North Wales is. I know North Wales from west to east. It is a very clearly defined area in my mind. I know also that the people of

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North Wales are not familiar with the south east of Wales and even less so with the west of Wales. Consequently, they tend to feel isolated from centres of gravity such as south east Wales.
I believe that a regional committee such as is envisaged for North Wales is extremely important. It will reassure the people of North Wales. I am pleased to see the provision in the Bill. I support it. As for other regions in Wales, it is for the assembly to determine what is appropriate; what sort of advice is required in respect of those regions; and to form its standing orders accordingly.
Lord Williams of Mostyn: My Lords, it seems to me that there are three issues here deriving from the amendments and comments made: boundaries, powers and membership.
If Amendment No. 89 were accepted, there would be five committees: one for North Wales, one for mid and west Wales, and then western, central and eastern parts of South Wales. The noble Lord, Lord Roberts of Conwy, himself said that, if his amendment were accepted, we should have the absurd situation of a single committee representing Llanelli and Llanrrhos. One would have other oddities; for example, most of us would say that Aberdare and Treorchy have much more in common with Merthyr, which is not in the same electoral region, than Cardiff, which is. The noble Lord's amendment would prevent that arrangement and similar arrangements being reflected in the assembly's committee structure. It seems to me that the noble Lord, Lord Thomas, is right to say that that is for the assembly to determine. That deals with boundaries.
As regards powers, those regional committees are not intended to hold the assembly to account. They are advisory and they will work, one assumes and hopes, with other public bodies in the area—for example, North Wales—to have what may well be genuinely not a separatist but a collective North Wales view which it can put forward to the assembly as a regional committee. That seems to be perfectly reasonable to me.
As regards membership, the noble Lord, Lord Roberts, suggests that his Amendment No. 90 would make the selection of members easier. That may be so. But the committee is not to be constituted to make selection easier but to perform a specific role which is advisory in the most effective way. The noble Lord, Lord Stanley, says the committees will be toothless waffle shops. No, it depends on the members who are elected, their commitment to their advisory function and their commitment to making the assembly work, not on the basis of confrontation—we have had enough of that over the past 25 or 30 years in Wales—but in a spirit of co-operation.
The boundaries suggested in the amendment of the noble Lord, Lord Roberts, will not work and should properly be within the province of the assembly's decision.
Lord Roberts of Conwy: My Lords, I am disappointed by that reply. Of course, I recognise that the amendments I have tabled have their shortcomings. But I should like to have a more positive attitude on the part of the Government.
We have been told quite clearly that the key features, beyond those contained in the clause, are to be sorted out by the assembly. I simply note the fact that this another highly problematical area which we are foisting on the assembly, even before it starts. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 90 not moved.]
12.15 a.m.
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 91:
After Clause 61, insert the following new clause—

YOUTH ADVISORY COMMITTEE
(" .—(1) The Assembly may establish a committee to provide advice to the Assembly about matters affecting young people in Wales.
(2) A committee established under this section shall be known by such title as the standing orders may provide (but is referred to in this Act as the youth advisory committee).
(3) The members of the youth advisory committee shall be—

(a) all members of the Assembly under the age of 26 at the time of their election to the Assembly, and

(b) members selected by the Assembly from outside the membership of the Assembly.

(4) The standing orders of the Assembly shall provide for the selection of the members referred to in subsection (3)(b).
(5) The youth advisory committee shall elect one of its members to chair it.").
The noble Lord said: My Lords, we had a useful debate on 3rd June (col. 425) on the notion of a youth advisory committee. I raise it again now. Unexpectedly—perhaps I should have realised this—the proposal has generated much more support outside this House than I imagined likely. Indeed, they talk of nothing else in Clwb Ifor Bach in Cardiff and other places. Therefore it seems to me that we have to return to this issue and flag it up with perhaps slightly more support from the Government than was shown—although I am always very grateful for all assurances I receive from Government Ministers during these debates—and perhaps a little more assurance on the importance of this issue in terms of citizenship. Maybe I did not spell out sufficiently clearly what we are dealing with. We are dealing with a nation in which the remaking of a culture, particularly by the younger citizens, is an essential part of how we take the nation of Wales on, and the fact that a new institution does not come into being merely by legislation or Acts of Parliament. It comes into existence by being remade by the people who participate in it and relate to it. I hope

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that not only will the notion of a youth advisory committee be something that somebody will take on but that the assembly itself will be seen as something that moves and excites the people who will make the Wales of the next century.
That is the reason why I bring forward this matter again: to get a little more support for it from all sides of the House and to underline the fact that I think it is particularly important that we should, in the development of citizenship, pay attention to the recreation of a form of inclusive citizenship that gets us beyond the divisive stereotypes which are still in evidence, even in your Lordships' House, because certain noble Lords have referred to themselves as North Walians. I am not a Walian; I am not an alien; I am a citizen of Wales—and so, one hopes, are many in your Lordships' House here this evening, or this early morning. Indeed the young people who will participate in the youth advisory committee will not be Walians; they will be citizens of Wales. I beg to move.
Lord Williams of Mostyn: My Lords, as the noble Lord said, we discussed this quite fully on the last occasion. The assembly does not need this power because it has it under Clause 54(1)(b), and subsection (2)(b) in particular removes the requirement for any such committee to reflect party balance if the committee exists solely to provide advice. So if there were any members under 26 in the assembly they could all be on the committee, irrespective of any party allegiance.
The question of co-option we believe is wrong in principle. One should not co-opt outside members on to assembly committees, since they would not be elected. They are perfectly able to give evidence and to make submissions to the committee, if that is appropriate. I do hope that I was plain in indicating to the noble Lord on the last occasion that of course we want young people to be involved in the assembly and interested in it, because in many ways it is their future that the assembly is going to provide for. I repeat that I support the noble Lord in principle, but we do not need duplication of available powers, because it is plainly there in Clause 54(1)(b), given the absolute freedom of subsection (2)(b). I hope that I have said enough to satisfy the noble Lord. We do agree with the thrust of what he says, but these amendments are really not necessary.
Lord Elis-Thomas: My Lords, clearly, since I have failed to excite the noble Lord, Lord Thomas of Gresford, to de-alienate himself, I would merely like to thank the Minister for his further assurance and his emphasis on the issue. On that basis, I beg leave to withdraw the amendment.
Lord Thomas of Gresford: My Lords, before the noble Lord sits down, may I say that he illustrates one of the principles of people from north-east Wales: the further west you go the more trouble you get!
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 92:
After Clause 64, insert the following new clause—

CROSS-BORDER AGRICULTURAL BUSINESSES
(" . The subordinate legislation procedures must include provision for securing that the Assembly makes such provision as it considers appropriate in any legislation it makes to take account of the position of agricultural businesses comprised of land partly in Wales and partly in England.").
The noble Lord said: My Lords, I moved an amendment in Committee regarding the problem which could be faced by farms straddling the border which was not accepted. That was partly because the noble Lord, Lord Williams, thought that I might be able to "work the system" in having a farm in both Anglesey and Oxfordshire. I have to admit that I had not realised the potential which, I am sorry to say, reflects poorly on my intellect. Indeed, if I had, I would have drafted the amendment more deviously.
However, I gather that the noble Lord really did not approve of the amendment. He suggested that it was cherry picking and said that the problem would be dealt with by "regulatory appraisal". With respect to the noble Lord, I cannot see that such an appraisal would solve anything other than necessitating a few civil servants spending the odd afternoon discussing the problem, shaking their heads in sadness, having a cup of tea and saying that they should not be made to do the job.
The current amendment would be more positive because it would do much more than appraise. It would oblige the assembly, when regulations are made, to consider any effect those regulations might have on farms straddling the border. That would then oblige the assembly to make a special regulation for those farmers if it was considered necessary. I beg to move.
Lord Williams of Mostyn: My Lords, I am not sure that I can add much more to what I said on the earlier occasion. From the wording of the amendment, it is not clear what is sought to be achieved. However, I understand what the noble Lord indicates is his hope. We are talking about an agricultural business comprising land partly in Wales and partly in England—indeed, I believe I said "partly in southern England" previously. It was only later that I realised that I ought to have said Oxfordshire, but I was not then quick enough to say so. Nevertheless, the noble Lord has made his confession in that respect.
An agricultural business could easily comprise land in Anglesey and land in Norfolk. Undoubtedly, if the assembly was making subordinate legislation affecting land in Wales, I dare say it would want to consider what consequential effects that might have on a business which was a true cross-border straddle. However, I do not see the point of this amendment which deals with "subordinate legislation procedures"; in other words, the process by which such legislation is to be made.
The Welsh assembly will only be able to legislate within the borders. The noble Lord's amendment would simply enjoin the assembly to take account of the position of businesses which straddle Wales and England. But that is virtually meaningless. If the

815
assembly believes that there are anomalies, they will be taken into account in any event. I know the intended purpose of the amendment, but I do not believe that it would produce the desired result.
Lord Stanley of Alderley: My Lords, I am not sure that I follow the Minister's response. If he thinks that I am still trying to flog the case of a farm in Wales and one in Oxfordshire, that is not the case. I am really concentrating on a farm which straddles the border. I am saying—and perhaps the Minister is agreeing with me in this respect—that there may be occasions when this will cause a problem with regulations. Therefore, in such a case, I am asking the assembly to look specifically at such farms and make the necessary regulations to ensure that there are no further bureaucratic problems like those that the Minister said in Committee he did not want. That would ensure that the process would work correctly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 65 [Regulatory appraisals]:
[Amendment No. 93 not moved.]
Clause 67 [Disapplication of procedural requirements]:
[Amendment No. 94 not moved.]
Clause 70 [Openness]:
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 95:
Page 36, line 11, at end insert ("including in audio-visual or electronic form,").
The noble Lord said: My Lords, this is a new amendment which seeks to establish that the word "record" in the Bill as it relates to a record of the assembly's proceedings can indeed be in forms of information technology. This follows on from some concern that we may be replicating in Cardiff Bay—perhaps needlessly or necessarily, depending on one's viewpoint—the procedures of this House. It is certainly not for me, as one who has benefited from having my words recorded in Hansard over the years, to criticise that provision in the Official Report. I merely wish to point out that there are other ways and other procedures adopted by different assemblies to relate their proceedings. In particular, we are now in a situation where an electronic record and an audio-visual and textual record of that kind can be made instantly and easily accessible to those who want to follow assembly proceedings.
For those reasons I think it is important that we should consider what is happening in other countries. For example, I understand that in the Basque country members and officials have instantaneous access to video and audio tapes of proceedings and audio tapes of interpretation. There is a similar linguistic balance between the Castilian and Basque languages as between Welsh and English. They also provide access to electronic transcripts as soon as they are produced. I seek to ensure that we seek the simplest, most accessible, cheapest and most effective way of
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providing a record. I suggest that many of the bilingual issues can be resolved by use of the appropriate technology.
As I have argued on previous occasions, simultaneous translation from spoken Welsh into English will be immediately necessary in the context of the assembly and its record. As regards the written record, in the context of the subordinate legislation that has to be produced in a bilingual form, there is clearly an argument for a written record in both languages. I caution here that we should approach the issue of record and of language of record in a pragmatic and sensible way. We should consider the technology used to produce the record alongside the question of languages and content. We should consider the accessibility to the record on the Internet and treating the affairs of the assembly as if they were one great current affairs television production. With the modern techniques of electronic digital recording, time coding and so on, it is possible to retrieve the record rapidly.
Therefore the methods that we adopt in this House for reasons of history and of practice to produce a typewritten record overnight might not be the most efficacious way to deliver an immediate record of the proceedings of the assembly. These are issues that I want to flag up because they are under debate within government and within the advisory group. I want to ensure that the record can be produced in whatever form is appropriate. I beg to move.
Lord Falconer of Thoroton: My Lords, Amendment No. 95 would require standing orders to provide for publication of a report of assembly proceedings,
"including in audio-visual or electronic form".
While we do not think that this is a matter for the Bill, we sympathise with the thought behind the amendment. As a modern democratic institution, the assembly will want to ensure effective communication with those for whom it is working, and its reporting arrangements will need to reflect that. So, for example, it is quite likely that reports of its proceedings will be accessible through the Internet, and no doubt the fertile mind of the noble Lord will have other suggestions to make on assembly communications with people in Wales if the electorate of Meirionnydd Nant Conwy are bold enough to select him as their representative.
If the noble Lord will accept that we applaud the spirit of the amendment but cavil at its insertion into the Bill, perhaps he will be minded to withdraw it.
Lord Elis-Thomas: My Lords, I am grateful to the Minister for spelling out the breadth of the meaning of the word "record". I am not sure whether I take his other remarks as an endorsement of my candidature or whether they are, as it were, hostages to fortune. However, I shall not take up the time of the House at this time of the morning to discuss that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley Lord Stanley of Alderley had given notice of his intention to move Amendment No. 96:
After Clause 72, insert the following new clause—

DETERMINATION OF PLANNING APPEALS
(" . Where the determination of planning appeals on planning applications under town and country planning legislation has been transferred to the Assembly by an Order in Council under section 22 of this Act, the standing orders must include provision for this function to be exercisable by the presiding officer.").
The noble Lord said: My Lords, I am in the hands of the House. This is a substantive amendment. I know that it is giving problems to NAAG. I shall certainly move it if that is the wish of the House. However, I think it may be better to delay it until the next stage. However, if the House wishes me to continue, so be it.
12.30 a. m.
Lord Falconer of Thoroton: My Lords, I know the substance of the amendment. The noble Lord is absolutely right. It is a substantive amendment on which it might be appropriate to spend a little time, effort and energy earlier than half past twelve at night. I shall be content if we can finish the other amendments, but leave this one until next time. That seems sensible.
Lord Stanley of Alderley: My Lords, I thank the noble and learned Lord. I shall not move the amendment, and I shall bring it back next time.
[Amendment No. 96 not moved.]
Schedule 5 [Bodies and offices covered by section 74]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 97:
Page 88, line 20, leave out ("in respect only") and insert ("only or mainly in respect").
The noble and learned Lord said: My Lords, in moving this amendment, with the leave of the House, I shall speak also to Amendments Nos. 226 and 227.
Amendment No. 97 relates to Schedule 5 to the Bill, which lists bodies covered by Clause 74; that is, those whose members or staff are liable to be summoned by the assembly for the purpose of giving evidence, and so forth.
Schedule 5, as it currently appears, refers by name to certain special health authorities which perform functions in respect of both England and Wales. It also refers to any special health authority performing functions in respect only of Wales. However, it would not include any special health authority that performed functions mainly, but not solely, in respect of Wales. That would obviously be anomalous. Although such bodies exist now, that could change. The National Health Service in Wales is to remain part of the wider National Health Service. One can easily envisage a body established primarily to serve Wales nonetheless providing services to NHS bodies in England too.
With the schedule as drafted, a decision to apply services across the border for what might be perfectly sound operational reasons would have the unintended
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effect of exempting the body entirely from the power of summons. That could not be right. The intention of the amendment is to ensure that such bodies, if and when established, are included. It would allow the assembly to summon any special health authority which performed functions only, or mainly, in respect of Wales, thereby removing the anomaly.
Turning to the second and third of these amendments, I would draw the attention of the House to Part II of Schedule 17. That lists NHS bodies subject to the provisions of Clauses 144, 145 and 146, covering audit and examinations into the use of resources. In particular, Schedule 17 defines the bodies that are to come within the remit of the Auditor General for Wales.
NHS bodies form a major part of the public sector in Wales. It is important that they are subject to the power of the Auditor General for Wales under Clause 145 to carry out examinations into the economy, efficiency and effectiveness with which they use the resources provided to them, and to report accordingly to the assembly. I might add that the current arrangements under which NHS bodies' accounts are audited by the Audit Commission appointees will not change.
However, the schedule as it currently stands may not adequately cover Welsh NHS bodies if they choose to operate in a particular way. The reason for that is that the schedule currently specifies that an NHS trust is subject to provisions only if all of its hospitals, establishments and facilities are situated in Wales, and a special health authority is subject to them only if it performs functions in respect only of Wales. As the Bill stands, Welsh NHS bodies with an English dimension, however marginal, are not subject to the Auditor General's powers; nor are they capable of being added to the list of bodies subject to those powers in Schedule 17 under the Secretary of State's powers in Clause 144(8)(a).
It is quite possible that a trust might acquire facilities just across the English border, perhaps to serve people living in parts of Wales near the border or to co-operate with an English-based NHS body in respect of certain patient services. As the Bill stands, it would then fall outside the remit of the Auditor General for Wales, as would a special health authority that started supplying services to a body in England or indeed elsewhere. That could not be right. Such bodies would remain predominantly Welsh and should be treated accordingly.
If noble Lords are minded to accept the amendments tabled, the schedule will refer to any NHS trust all or most of whose hospitals or facilities are situated in Wales, and to any special health authority performing functions only or mainly in respect of Wales.
I trust that your Lordships will be satisfied that it is wholly proper for bodies of such descriptions to come under the scrutiny of the Auditor General for Wales, so that he may report upon them to the assembly. I beg to move.
On Question, amendment agreed to.
Clause 76 [Role of Secretary of State for Wales]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 98:
Page 40, line 15, at end insert—
("( ) The Assembly may require the Secretary of State for Wales to attend any proceedings of the Assembly or a committee of the Assembly.").
The noble Lord said: My Lords, this amendment involves the consideration of Clause 76 of the Bill. It is headed,
"Role of Secretary of State for Wales".
It is worth looking at. In subsection (1) the Secretary of State for Wales has a broad power whereby he is,
"entitled to attend and participate in any proceedings of the Assembly".
That having been stated as a general principle, subsection (2) immediately cuts his role down to virtually that of a figurehead. The right to vote is then removed, and a right to attend or participate in the proceedings of a committee or sub-committee is removed. So he cannot attend the executive committee, the subject committees, the regional committees, the audit and the subordinate legislation committees. The Secretary of State is excluded from participation in that important aspect of the assembly's work in any form.
What is left? It would appear that all he can do is, if he feels like going down to the assembly one day in order to tick off the members or give them a wigging about what they are doing, he can attend and talk; and that is the end of it. But that is at his own whim. Again this is another clause written from the point of view of the Secretary of State.
One should really be considering in this legislation the attitude of the assembly to the Secretary of State. How will it feel? How will it react to the link man between the Cardiff assembly and the Westminster Parliament? The minimum that it will require is a right to demand his attendance if the members wish to ask him questions; to ask him to explain policy; to ask him to express views that he can convey, as the link man between the assembly and Parliament, to Parliament itself.
Again, if one postulates the different parties in power in the Westminster Government and the Cardiff government, that link between the two may be completely lost. Under the clause as drafted the Secretary of State can say, "I am not going to go down there. They are all a bunch of politicians from a different party. I am not going to talk to them". The assembly will have no right to demand his attention. So there may be a complete breakdown in communication between assembly and Parliament.
I ask the Government to think again about this clause and to ask themselves whether the role of the Secretary of State is to be as limited as set out here; or whether
820
he is to have a valid function of bringing the two bodies together and ensuring that communication is maintained. I beg to move.
Lord Falconer of Thoroton: My Lords, I know that the noble Lord, Lord Thomas of Gresford, feels strongly about this. He made that clear at the Committee stage of the Bill and has made it clear again this evening.
We have thought about this matter and I regret that, notwithstanding his strength of feeling, we do not believe it would be right for a provision such as this to find its way into the Bill. A key role of the Secretary of State, after the assembly is created, will be to represent Welsh interests in the Government of the United Kingdom. In performing that function he will inevitably have to keep in close touch with the assembly. Of course, we provided for a specific obligation to apply requiring him to consult the assembly on the Government's legislative proposals.
Lord Thomas of Gresford: My Lords, we have already discussed that. He only has to consult them on such matters as he thinks fit. That is how the provision is phrased. I have already attacked the thinking on that issue, so if all the Secretary of State has to do is to consult on matters he thinks fit, he may think fit not to consult them at all.
Lord Falconer of Thoroton: My Lords, I made it clear that I thought, although the noble Lord appears rather belligerently to have a different view in relation to this, that on the central issue of Clause 31 we were broadly thinking along the same lines; namely, he would consult on legislative proposals that would affect Wales on such matters as the environment and other matters directly in the remit of the assembly. So I take issue with the noble Lord when he seeks to underplay the effect of the obligation to consult on the Government's legislative proposals.
The important point is that when all is said and done the Secretary of State will not be accountable to the assembly. He will remain accountable to Members in another place for the performance of his official duties, just as the first secretary will be accountable to the assembly for the performance of his. If that is the true constitutional relationship, it must surely follow that the Secretary of State should not be required to attend the assembly even if he could be—and will be—invited to attend on occasions. The reasoning here is precisely the same as in other parts of the Bill. Bodies which are accountable to the assembly may, in the last resort, be summoned to the assembly to give evidence. Bodies whose activities may be of particular interest to the assembly but which are not directly accountable to it may be invited to give evidence.
We debated this earlier in the context of amendments moved in Committee by the noble Lord, Lord Elis-Thomas, to what is now Schedule 5. As was said in that debate, invitations from the assembly to attend and give evidence would not be lightly declined, and I dare to say that invitations to the Secretary of State to attend particular meetings of the assembly, or one of its committees, will be treated with the equivalent

821
seriousness, given his key role as the conduit of assembly opinion to the UK Government. But to give the assembly powers to require him to attend seems to us to be a step too far and one not consistent with the more general theme underlying our proposals that relationships after devolution should be based on non-legal concordats rather than statutory provision.
In the light of my explanation of our views, I hope that the noble Lord will see his way to not pursuing his amendment.
Lord Thomas of Gresford: My Lords, I do not propose to pursue the amendment to a vote at a quarter to one in the morning, but I have to say that I believe that the Government's thinking is wrong. I think they are hung up on the word "accountability" as though it implies that, because the assembly has a right to require the Secretary of State to come before it, in some way it can control his every movement and everything he does; that it can fetter his discretion in some way. That is not so. All it can do if it requires him to attend is to put questions to him and it has to accept his answers. The concept of accountability has come from a constitutional text book and is to a large degree slanting the thinking of the Government on this topic. I respectfully urge the Government to rethink the position before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 [Defamation]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 99:
Page 40, line 35, leave out ("with any person") and insert—
("(i) between any person and a person").
The noble Lord said: My Lords, Amendment No. 99 is grouped with Amendments Nos. 100 and 102. The purpose here is to give clearer protection in respect of privilege. The amendments are concerned with absolute privilege in the context of the law of defamation.
Amendments Nos. 99 and 100 widen the scope of the existing privilege in subsection (2)(e) of Clause 77. This relates to communications about registration of interests. At the moment, protection would be given in respect of a communication to a registrar of members' interests; but if the letter instead was sent to the person's assembly member, which is entirely possible, it would not be so protected. That does not seem to be right. Therefore, we seek to broaden the protection.
Amendment No. 100 has a new element—subsection (2)(f). This gives protection to the same extent as amended subsection (2)(e), but this time in relation to complaints of maladministration on the part of individuals who are members of or employed by the
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assembly. Therefore, we believe that this is the appropriate protection for these circumstances. Amendment No. 102 is simply a consequential drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 100:
Page 40, line 36, at end insert (", or

(ii) between any person and an Assembly member,

in connection with such registration, or

(f) any communication—

(i) between any person and a person having functions in connection with the investigation of complaints about actions or failures on the part of the Assembly, or

(ii) between any person and an Assembly member,

in connection with any such complaint.").

On Question, amendment agreed to.
Clause 78 [Contempt of court]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 101:
Page 41, line 11, leave out ("made by or under the authority of the Assembly") and insert ("which either is made by or under the authority of the Assembly or is fair and accurate and made in good faith").
The noble Lord said: My Lords, this is a short amendment. It is designed to protect the freedom of the press in reporting assembly proceedings. Obviously, press reporting is extremely important, and media reporting generally, in the work of any assembly. The current drafting of subsection (1) is too tightly drawn. The effect of Amendment No. 101 is to disapply the strict liability rule in the Contempt of Court Act 1981, not only in relation to reports of assembly proceedings made by or under the authority of the assembly, but also—and this is very important—in relation to reports by others, providing that they are fair, accurate and made in good faith. This is a very important amendment as a matter of principle. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 102:
Page 41, line 15, leave out ("(e)") and insert ("(f)").
On Question, amendment agreed to.
Lord Carter: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
House adjourned at fourteen minutes before one o'clock.