§ (" . 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 703 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 704 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 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.
705 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) 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 706 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 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 707 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 708 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 710 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 711 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 712 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 713 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.
714 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.
716 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 717 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.
718 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, 94.720
|Division No. 2|
|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.|
|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.|
|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.|
|Williams of Mostyn, L.|
|Islwyn, L.||Young of Old Scone, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.721
§ 6.28 p.m.
§ 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,
§ 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 722 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 723 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 724 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 725 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 726 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.
727 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 728 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 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 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.
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 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 731 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 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 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 732 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.733
§ 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.
734 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.]735
§ Schedule 2 [Fields in which functions are to be transferred by first Order in Council]:
§ 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 736 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
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 738 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.
740 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 Policythat 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.