HL Deb 01 July 1998 vol 591 cc760-4

(" .—(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 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, 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 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. 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 moved Amendment No. 41:

After Clause 26, insert the following new clause—