HL Deb 01 July 1998 vol 591 cc817-22

(" . 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 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 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 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 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 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 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 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 moved Amendment No. 100:

Page 40, line 36, at end insert (", or

  1. (ii) between any person and an Assembly member,
in connection with such registration, or
  1. (f) any communication—
    1. (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
    2. (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 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 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.