HL Deb 15 July 1998 vol 592 cc315-30

(" .—(1) Before any Minister of the Crown attends a meeting of the Council of Ministers at which consideration is to be given to any issue relating to functions which have been transferred to the Assembly, the Secretary of State shall consult the Assembly and seek its views on that issue.

(2) When a Minister of the Crown attends such a meeting of the Council of Ministers, he may permit a member of the executive committee of the Assembly to attend with and participate in the United Kingdom delegation.

(3) Following such a meeting of the Council of Ministers, the Secretary of State shall report the proceedings of that meeting to the Assembly and answer any questions that Assembly members may have.").

The noble Lord said: My Lords, we debated this new clause rather late on the second day in Committee. The basic issues have been touched on in other debates, such as the debate on agriculture on the first day on Report. I am prepared to accept the statement of the noble and learned Lord the Solicitor-General on 2nd June, reported at col. 312 of the Official Report. He stated: The starting point is that the UK is the member of the EU. The UK can choose who is the most appropriate person to speak … on behalf of the UK, in the Council of Ministers. The UK could choose to have as its representative a secretary from the Welsh assembly". The noble and learned Lord went on to say that such a person would be in a parallel position to that in which I found myself when speaking occasionally on behalf of the United Kingdom. That part I do not accept. I was a Minister in the United Kingdom Government, while the assembly secretary would not be. I was answerable to the United Kingdom Parliament while the assembly secretary would not be. There are other consequential differences but I shall not pursue them.

However, it is worth noting that we have been able to establish in the course of our discussions that attendances in a leading role by non-central government Ministers at the Council of Ministers have been limited to attendances by a representative of the Land Government of Bavaria and the Government of Catalonia to participate in discussions on cultural and linguistic issues. My noble friend Lord Mackay of Ardbrecknish, who was a Minister in the Scottish Office, attended as a United Kingdom Minister with a brief to represent the interests of the United Kingdom fisheries. The noble Earl, Lord Lindsay, was in a similar position. He described it clearly during Second Reading of the Scotland Bill.

Our discussions on such matters have tended to obscure the fact that these issues are peripheral to the conduct of business at the Council of Ministers where the lead is normally taken on behalf of the United Kingdom by the relevant United Kingdom Minister. That is the usual practice when important issues are at stake. In our view, that practice is unlikely to change substantially after the assembly has come into being. There may be occasions when an assembly secretary may attend the Council of Ministers with the agreement of the leading UK Minister, and theoretically he or she may participate in negotiations, but in our view such participation will be a rarity rather than a common practice.

The procedures before and at negotiations are likely to be similar to those described by my noble friend Lord Mackay of Ardbrecknish on the second day in Committee when we discussed the new clause. If we are to ensure that the best interests of Wales are served, in agriculture for example, we urge the Government to accept the new clause. It gives the Secretary of State for Wales a well defined role in consulting the assembly prior to important negotiations at the Council of Ministers, and in reporting to the assembly on the outcome of the negotiations.

That would not debar the assembly from taking any supplementary action it feels necessary. The assembly secretary could still attend a Council of Ministers meeting at the invitation of the leading UK Minister. We believe the involvement of the Secretary of State is important because he is a Member of the United Kingdom Government and on a similar footing to the lead Minister. He will be able to safeguard Welsh interests in a way that the United Kingdom Minister is under no obligation to do. Welsh interests will be the paramount consideration of the Secretary of State for Wales.

We are all aware of the great changes facing the European Union and the important developments ahead in many areas of policy. It is clearly important that Wales should have its input into those changes, and that can best be achieved through the United Kingdom Government who will have their own perspective on them. Welsh views will have to be incorporated in the perspective. Who would be better placed to ensure a favourable outcome than the Secretary of State acting on the advice of the assembly? I beg to move.

Lord Davies of Coity

My Lords, I wish to pose a question to the noble Lord, Lord Roberts. We are dealing with three subsections in a new clause concerning the responsibilities and authority which will be in the hands of the Welsh assembly; the functions for which it will be responsible. It is inconceivable that any Minister of the Crown would enter into any discussions, particularly with the Council of Ministers, without keeping in close contact with the assembly, its officers, its leader and the Secretary of State for Wales. I do not believe that the clause is required in order to place such an obligation on a Minister of the Crown who could never be in a position of entering into discussions and reaching conclusions on matters which have already been given to the assembly.

Lord Williams of Mostyn

My Lords, we have discussed this amendment on two previous occasions. Two separate issues are involved. Subsections (1) and (3) put the Secretary of State as an intermediary between government and the assembly on policy discussions with European partners. He is to consult the assembly and then report back on what has transpired. That is not what we propose. The position of the Secretary of State as nanny, to coin a phrase, would be enshrined in statute. That is not the arrangement we seek.

We look to the assembly to play a direct role. It is not appropriate that the Bill should attempt to delineate that role by prescribing exactly how there are to be discussions between the assembly on European Union matters in the United Kingdom and European institutions. We believe that they can be handled on an administrative basis where necessary through concordats.

The assembly is to be involved in discussions which decide the UK negotiating line on proposals for EU legislation; for instance, on agriculture and environmental issues. There will need to be close liaison between the assembly and government departments, but we believe that the assembly itself ought to be carrying out conversations and discussions with government departments rather than giving in subsection (1) an intermediary role to the Secretary of State. I should make it plain that the intention is that the assembly should deal directly with relevant government departments on these European matters. We anticipate the same arrangements for the Scottish executive.

I turn to the somewhat different question of whether the assembly secretaries should form part of the United Kingdom delegation at the Council of Ministers' meetings. We do not believe that we need to interpose the Secretary of State, as suggested in subsection (3). We discussed the question of representation at length and on 9th July I wrote to the noble Lord, Lord Crickhowell, and placed a copy in the Library. We believe that assembly secretaries ought to be able to participate in policy negotiations, but subject to the agreement of the lead United Kingdom Minister. We disagree as to whether it is necessary for the Bill to make provision for that. We do not believe that we need to make provision in the Bill. If an assembly secretary joins the UK delegation he would have to adhere to the UK-agreed line. I am not entirely certain from subsection (2) of the amendment whether the noble Lord intends that "participate" should include speaking or voting. That is not plain to me.

In the letter to which I referred, I replied to the observation made by the noble Lord, Lord Crickhowell, on 1st July. It is plain that assembly secretaries can speak on behalf of the United Kingdom only with authority from the United Kingdom Government. I do not believe that there is any disagreement between us there. I sympathise with the motives behind the amendment—

Lord Crickhowell

My Lords, I thank the Minister for giving way. He referred to the letter that he wrote to me. I would have intervened earlier, but I confess that I temporarily mislaid the letter. I am grateful to him for confirming in the letter that in practice, in relation to the major issues such as agriculture, industry and the environment, representation of United Kingdom interests will almost invariably be made by a UK Minister. It will be on other matters that from time to time an assembly minister may speak. That emphasises the importance of having an adequate system of communication and consultation, which is the subject of the amendment.

I wish to ask the Minister a particular point, because he misrepresents the position in his letter. I asked about the right under the treaty for a representative who is not a Minister to speak. The Minister said that anyone who was authorised to commit the Government could represent. I must refer him to the words of the treaty. It states that the council shall consist of a representative of each member state "at ministerial level" authorised to commit the Government. What puzzles me is how an assembly member could be described as a representative "at ministerial level". I should be grateful for a response to that precise question.

Lord Williams of Mostyn

My Lords, I do not see the difference or the distinction between the examples given by the noble Lord, Lord Roberts of Conwy, that representatives of the German Länder, for instance, by definition would not necessarily be members of the Federal Government in Germany and the example given by the noble Lord, Lord Elis-Thomas, that representatives of Catalonia are not ministers in the central Spanish Government but of provincial assemblies, and I use that word without disparagement. Therefore, I do not believe that the noble Lord's point is a good one.

As I was about to say, I have a good deal of sympathy with what the noble Lord, Lord Roberts of Conwy, is seeking to achieve. However, conscientiously responding to the spirit of his proposal, I say that we do not believe that the Secretary of State should have this intermediary role. We believe that the Secretary of State should be on one side when one is having negotiations and discussions between the assembly, other government departments and other institutions. Therefore, we believe that to introduce or to re-introduce the Secretary of State to what is in this context the domestic jurisdiction of the assembly, then extending into the European context, is not the way to do it. We believe that the right way is concordats and sensible working arrangements between the assembly and other government departments.

I stress that we have not dismissed the issue, but we believe that although our objective is not entirely dissimilar the way of reaching it is different. I hope that having explained the Government's position, the noble Lord will feel able to withdraw the amendment.

Lord Roberts of Conwy

My Lords, I am grateful to the Minister for his reply. I am afraid that there is a major difference between us in that we still believe that the Secretary of State has a very important role to play. He will be on the same footing as the lead United Kingdom Minister in most negotiations that take place in Europe.

The other factor which affects our view of the matter is the enormity of the problems which are facing us in Europe and the discussions which will take place.

With all due respect to the assembly, it will be very much a novel body when it is established as a result of the elections next May. I doubt whether it will be able to develop the expertise required to oversee the negotiations which will decide much of the future of Welsh agriculture and other aspects of Welsh life. There are extremely important issues arising for discussion in Europe, as we all know. It seems to me that we should have a Secretary of State in charge of those negotiations.

7 p.m.

Lord Elis-Thomas

My Lords, it seems a very strange argument. Is the noble Lord suggesting that Conservative candidates who might be elected to the national assembly would not understand the CAP?

Lord Roberts of Conwy

My Lords, I do not believe that any of the candidates for the assembly of whom I am aware have had any experience whatever of European negotiations. I am not speaking about Conservative candidates. I am thinking of all the other candidates of whom I know to date. I am sure that in due course they may well acquire sufficient experience. However, the noble Lord, Lord Elis-Thomas, will know of the extremely important, crucial discussions which will be taking place in Europe in the not too distant future.

The Government's view is that the assembly should take full responsibility for those discussions, albeit under the leadership of a UK Minister. I wish the assembly well. But I should feel safer about the outcome being favourable to Wales if those matters were the responsibility of the Secretary of State. There is a difference between us which I am sure will persist. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Different exercise of functions by Assembly]:

Lord Simon of Glaisdale moved Amendment No. 30:

Page 23, line 39, after ("section") insert ("and sections 43 and 45").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendments Nos. 31, 32, which is not perhaps quite on a par with the others, and 33. This group of amendments is exactly parallel with the others which the Minister moved earlier and to which I put my name which resulted in some economy in the statute.

Clause 42 ends: In this section 'enactment' includes an enactment … (a) contained in an Act passed after this Act, or (b) made after the passing of this Act". Clause 43, to which Amendment No. 31 relates, is in exactly the same terms. It states: In this section 'enactment' includes an enactment", and so on. So it is in Clause 45(4)(b) which states: 'enactment' includes an enactment contained in an Act passed after this Act or made after passing of this Act". That is exactly the same but expresses it more succinctly.

The amendment seeks to provide in Clause 42(6): In this section and sections 43 and 45 'enactment' includes", and so on. That enables one to omit the other provisions in Clauses 43 and 45 which are referred to. Up to that point it is absolutely clear. There is a mere repetition in the subsequent clauses and all one has to do is to refer to those clauses the first time it occurs. That is exactly what was done by the Government in relation to the earlier amendments.

I sought from the noble and learned Lord an assurance that the Government would accept this group of amendments because, as I suggest, they are exactly comparable with the earlier amendments. However, he said that the Government were not prepared to do so and so far as my aged and unagile mind managed to pick up the argument on the hoof, so to speak, I believe that he was referring to Clause 155. That provides: 'enactment' includes subordinate legislation". The important matter is that in each of the provisions that I have cited, including Clause 155, the crucial word is "includes". It does not say "means" which the draftsman sometimes uses in an interpretation clause. Therefore, there is absolutely no inconsistency between Clause 155 and the earlier clauses to which I referred.

Moreover, if there were anything in the point about Clause 155, it would apply equally to Clauses 42 onwards to which I have referred. Therefore, I fear that there is nothing whatever in that point. It is most unfortunate that Third Reading is following so quickly on the Report stage. There has been only the minimum of three clear sitting days and one was a Friday. Therefore, the Minister had no opportunity to answer my query on the point. If he had, I should have been reasonably confident of convincing him. In fact, I do not despair of it, even at this stage.

As your Lordships know, every brief for an amendment ends either "accept" or "consider" or, all too frequently, "reject". It is perfectly obvious from what the noble and learned Lord, said earlier that his brief ends "reject". But I would venture to remind him that he and not the draftsman of the brief is in charge of the amendment. I call to his attention the noble Earl, Lord Ferrers, when he was a Home Office Minister. An amendment was moved to a Home Office Bill relating to touting. There was already a provision relating to touts operating outside football grounds where the mischief was established. The amendment sought to extend that to touts working outside Wimbledon. The noble Earl read through his brief, which was obviously going to end with the word "reject"; but, to everyone's surprise, he contradicted it by saying: "My Lords, I accept the amendment". I commend that course to the noble and learned Lord. I beg to move.

Lord Falconer of Thoroton

My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for proposing that the definitions of "enactment" in Clauses 42, 43 and 45 could be brought together in one place. Unfortunately, I do not think that the method he has chosen for doing so is necessarily a sensible way to deal with the matter. I concede straightaway that the amendments of the noble and learned Lord stand up as a matter of law; indeed, they would achieve the effect that he wishes them to achieve. However, if this House were to accept the amendments, there is a risk that future users of the legislation may be misled.

The noble and learned Lord's amendments would have the result that the word "enactment" for the purposes of Clauses 42, 43 and 45 would be defined in Clause 42 as including an enactment contained in an Act passed after this Act or made after the passing of this Act. But someone looking at Clause 43 or Clause 45 in isolation, without the benefit of a legal textbook to assist him or her, might most naturally turn to the list of defined expressions in Clause 155 and mistakenly assume that the definition of "enactment" in Clause 155(1)—which says that enactment "includes subordinate legislation"—was the end of the matter.

Therefore, the point here—and it is perfectly good one—is that, if you take the special definition and put it into Clause 42, when people look at Clause 43 and see the same word they will turn to the definition section instead of going back to Clause 42. The noble and learned Lord's answer to that is to say that there is no problem because there is no necessary inconsistency between the definition of "enactment" in Clause 155(1) and the definition of the word which is to be put into Clause 42. That is right. There is no necessary inconsistency. However, they are different, and they seek to make different points.

If, as the noble and learned Lord suggests, we encapsulate the extended definition only in Clause 42, the reader of the Bill who only turns to the main definition section will not get the broader definition contained in Clause 42. Therefore, the whole point would be lost. It is worth emphasising that some of the people who will be reading the legislation will not, so to speak, be the most distinguished Law Lords of their generation.

Lord Simon of Glaisdale

My Lords, I fear that that is not the best argument of the noble and learned Lord. However, it is also fair to say that it is not the worst. We still have to come to his arguments, which are mutually inconsistent, on the phrase,

with the consent of the Treasury". In so far as there was anything at all in the noble and learned Lord's point on Clause 155, that would apply just as much to the Bill as it is drafted; indeed, it is not an inconsistency, but a difference of wording as to the inclusion. It certainly would be different under my amendment from Clause 42. However, in exactly the same way, it is inconsistent or cannot be easily read with Clauses 42, 43 and 45 as drafted.

I also said something about Clause 44. I had thought that the point was a little more arguable now. I would have asked the Government to accept my amendment to that clause and, if it needed adjustment, I would have asked them to adjust it when the Bill returns to the other place, which is where it must go. However, as the noble and learned Lord has set his face against my amendments, it would not have been worth my while to make that point. Nevertheless, I emphasise that if you stop at Clauses 42, 43 and 45, the situation would be exactly comparable to the earlier amendments and would result in a considerable saving.

In so far as Clause 155 has any relevance, it is equally relevant to the Bill as drafted. As I said earlier, however exasperating the Government's response may be, these drafting points are not really suitable for a Division. Therefore, solely on that ground, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Construction of references to Ministers and departments]:

[Amendment No. 31 not moved.]

Clause 44 [Parliamentary procedures for subordinate legislation]:

[Amendment No. 32 not moved.]

Clause 45 [Laying of reports and statements]:

[Amendment No. 33 not moved.]

7.15 p.m.

Clause 56 [Executive committee]:

Lord Roberts of Conwy moved Amendment No. 34:

Page 28, line 24, at end insert—

("(2A) No Minister of the Crown shall be a member of the executive committee.").

The noble Lord said: My Lords, noble Lords may wonder why we are returning to this amendment, which would prevent a Minister of the Crown from becoming a member of the Welsh executive, when we have already carried an amendment proposed by my noble friend Lord Crickhowell which will prevent a Minister of the Crown becoming a member of the assembly.

The amendment now before us is a narrower one upon which I have consulted the authorities of your Lordships' House. I am told that there is no reason why we should not present the other place with a choice of amendments. Of course, if the other place accepts my noble friend's amendment, the amendment now before us will fall as the question of a Minister of the Crown becoming a member of the assembly executive will not arise. Indeed, there will be no such persons in the assembly to be chosen for the executive. However, if the other place rejects my noble friend's amendment, it can consider the one now before the House.

During our debate on the first day of the Report stage on 1st July, I set out the case for the amendment. I pointed out then that, although there appeared to be little objection to dual membership of representative institutions such as this Parliament and the assembly, the position was different when the member concerned was a Minister of the Crown whose first allegiance was to the UK Government. Indeed, I pointed out that that might well be in conflict with the assembly's executive of which he could also be a member.

Our contention is that a Minister of the Crown cannot serve two masters: he cannot be loyal to the UK Government with their principle of collective responsibility and to the executive of the Welsh assembly, which will operate on similar principle and on similar lines. The noble Lord, Lord Wallace of Saltaire, raised the question of British Ministers acting for the European Union during our recent presidency while remaining loyal to the Crown. I believe that my noble friend Lord Dixon-Smith gave the right answer when he said that the European parallel was incorrect and that the most apposite comparison in terms of the amendment was the problematic situation which would arise if a British Minister were to become a European Commissioner. That situation has never been allowed to happen because it has always been understood where the loyalties of Ministers and Commissioners lie.

We are not addressing a hypothetical issue here. The Secretary of State for Wales has let it be known that he may well stand for membership of the Welsh assembly and indeed seek to become its first secretary. The possibility was confirmed by the noble and learned Lord the Solicitor-General during our Second Reading debate on 21st April when he said, The Bill does not prevent one person being both assembly first secretary and Secretary of State for Wales".—[Official Report, 21/4/98; col. 1134.] The noble and learned Lord went on to describe in effect how that might be brought about.

I contend that such a development would make a nonsense of these devolution proposals. The essence of this Bill is the transfer of functions from the Secretary of State to the assembly under Clause 22. The assembly first secretary under Clause 56(6) is accountable to the assembly, for the exercise of functions by the executive committee which he chairs. There are some functions which may be reserved by the assembly for itself, but the first secretary's functions are substantial. We are therefore faced with a constitutional contradiction, circumvention, illusion, legerdemain—I do not know which word is the most appropriate. It is quite clear that if both positions are held by the same person, we shall witness the Secretary of State giving powers with one hand and taking them back, as assembly first secretary, with the other. That is a constitutional nonsense. It is hocus-pocus of the worst order.

I cannot believe it was in anyone's mind when this Bill was drafted that the post of first secretary would be held by the Secretary of State; otherwise, we have all been hoodwinked. There are a number of clauses where the Secretary of State or a Minister acts independently of the assembly and intervenes on behalf of the United Kingdom Government, as, for example, when the assembly takes action contrary to United Kingdom treaty obligations, or in cross-border areas where English electors not represented in the assembly may feel aggrieved. Therefore it is hard to see the Secretary of State acting against himself as first secretary. There have been other instances referred to earlier today by my noble friend Lord Crickhowell.

This situation whereby the Secretary of State may stand for the assembly and become first secretary is a comparatively recent development. We are told that it is inspired by the Secretary of State's desire to see the assembly firmly set up and running. We are also told that holding the two positions will be a temporary transitional phase lasting no more than a few months. Your Lordships may agree with me that the implementation of an Act of Parliament should not, and does not, depend on individual Ministers, however high the office they hold. I think the Secretary of State's mind can be put at rest with a clear assertion that Parliament's will will be done irrespective of persons and who holds particular offices. I beg to move.

Lord Elis-Thomas

My Lords, the noble Lord, Lord Roberts, continually speaks against himself. I think the rhyme goes, Hocus-pocus, I am a diplo-docus". I nominate him for the diplo-docus award for repeating this debate. When he argues that the implementation of an Act of Parliament should not relate to the position of an individual Minister, it seems to me that the tactic of the Conservative Opposition on this matter is entirely to do with a political campaign they are running against Mr. Ron Davies, my right honourable friend in another place. Clearly I have no brief to defend Mr. Ron Davies. I have no cause to defend the right honourable leader of my party, Mr. Dafydd Wigley. However, I have cause to try to prevent the Conservative Party once again from shooting itself in its foot and in its mouth. Either it wants to see this new creation, the National Assembly for Wales, work, or it does not. Either it participates actively as a Conservative Party to seek representation in that body, or it does not.

It seems to me that the main interest of the Conservative Party is to try to run a political campaign to undermine the structure of the assembly and the transitional period. Why is the noble Lord arguing—as he did in the previous debate—that there are no experts in Wales who understand how to negotiate agricultural matters in the European Union, or any other matter? Apparently none of us in Wales has any information or knowledge about European policies, regional policies, structural funds, or whatever, that is appropriate to the assembly. Yet at the same time he is saying that no Minister of the Crown should be in the assembly. On the one hand he is saying that there is no expertise but on the other hand he is saying where there is expertise it should not be put at the disposal of the assembly.

Let us take a case other than the Secretary of State. Let us take the hypothetical case of Mr. Win Griffiths, an excellent and able environment Minister in the Welsh Office. What if he were to stand for the assembly—I understand that he will not do so—as a Minister of the Crown? He is a parliamentary Under-Secretary in the Welsh Office. Why should he be prevented from doing that?

Lord Dean of Beswick

My Lords, I think the noble Lord is wrong.

Lord Elis-Thomas

My Lords, I understood he was a Minister of the Crown. However, I am now told he is not. I assumed he was, as he is a parliamentary Under-Secretary.

Lord Crickhowell

He is!

Lord Elis-Thomas

My Lords, he is a Minister of the Crown. I am grateful to the noble Lord, Lord Crickhowell. I shall continue my argument without being interrupted by a representative of the English regions. Let us take the case of Mr. Win Griffiths, an environment Minister in the Welsh Office. He is a knowledgeable and able Minister with European experience as he was formerly an MEP. What is to prevent him from becoming a Minister in the assembly? This amendment would prevent that. The noble Lord would do us all a great service—it would mean we could get to the BBC Wales current affairs party earlier rather than later—if he were to withdraw his amendment.

Lord Crickhowell

My Lords, I must apologise for not having been in the House when my noble friend began to speak to his amendment. Having spoken at some length on earlier occasions, I had not intended to intervene again on this subject. However, I cannot allow the noble Lord, Lord Elis-Thomas, to get away with what he has just said.

To begin with, I deny absolutely that there has been any campaign against Mr. Ron Davies personally. Indeed I went out of my way on a previous occasion to make clear that I followed no such campaign. A curiosity of the debates that we have had on this occasion is the ferocious way in which the noble Lord, Lord Elis-Thomas, has on each occasion defended Mr. Ron Davies, for whom he seems to have an extraordinary personal loyalty at this time. I hope in due course he is thrown a bone or two and is rewarded for that devotion.

This is a matter of pretty important principle. My objection to what is being proposed, quite apart from the issues of constitutional propriety and the impossibility, I believe, of holding these offices without a grave conflict of interest, is that I regard it as totally insulting to the people of Wales to be told that Ministers should hold this dual office and therefore ensure that far from being an independent assembly able to act as it thinks fit for the people of Wales, it will be dictated to and obliged to conform to the government agenda laid down by Cabinet. That, of course, is the reality of the matter if one has a dual agenda of this kind.

The noble Lord is talking nonsense when he says that we are preventing the distinguished public servants to whom he has referred—I grant those able Welsh Ministers their ability—from standing for the assembly or being Ministers in the assembly. We are not doing anything of the kind. They can stand down as Ministers of the Crown and stand for office in the assembly. I am not like those on the Liberal Benches who have argued against a dual mandate; I welcome a dual mandate. I think there is much to be said for a dual mandate and to have people sitting in the House of Commons who are also sitting in the assembly and perhaps in Europe too. I have nothing against that. However, I am against any Minister holding a dual ministerial mandate. I believe that to be improper and an extraordinary curtailment of the freedom and independence that this assembly should have.

I find it extraordinary that the noble Lord, whom I respect for his belief in the importance of the assembly, believes that the kind of control from the centre that would be inevitable if we have this structure is defendable and acceptable. It is a nonsensical proposition. I strongly support my noble friend in the arguments that he has advanced. If we are to have this assembly, I want more than anything for it to be strong, free and independent.

The noble Lord again advanced the absurd argument that that would be necessary in the transitional period; otherwise the poor, inexperienced assembly members (if ever there was an insulting comment) would not be able to govern Wales. The reality is that the whole Welsh Office will be behind them, still serving the assembly. Indeed, experienced people will be there, such as the noble Lord, Lord Elis-Thomas, who has been around quite long enough to look after himself and the work of the assembly. My noble friend is right that there will be certain functions that those people have not undertaken. They will not have negotiated in Europe. But assembly representatives and secretaries will not negotiate on important issues in Europe anyway. Noble Lords do not have to take my word for it. I have a letter from the noble Lord, Lord Williams of Mostyn, telling me that he agrees exactly, and that it will be in only a minority of cases, and in particular circumstances, that they will be likely to negotiate in Europe. The House should firmly support this proposition and reject the arguments advanced by the noble Lord, Lord Elis-Thomas.

7.30 p.m.

Lord Thomas of Gresford

My Lords, the decibels have been rising, as in the male voice choir competition at the Llangollen international eisteddfod last Saturday afternoon, at which the noble Lord was present. We should approach this matter calmly and rationally. As the noble Lord, Lord Crickhowell said, we on these Benches are in principle against the dual mandate extending far into the future. As my noble friend Lord Hooson said when he spoke on this topic at an earlier stage, we see advantages in having experienced people in position for the assembly's first term. Accordingly, it is perhaps better to have the acerbics whom one knows in the Labour Party taking charge to start with than those one does not know. It may well be that experienced Ministers can play a part at the beginning of the period of office. But after that, when experience has been gained, whether in Europe or elsewhere, of how the assembly works, it is our view in principle that after the first term there should be no dual mandate and that Ministers of the Crown should not be involved in the workings of the Welsh assembly.

Lord Dean of Beswick

My Lords, I have listened with care to the previous remarks. My background makes me rather reluctant to accept the proposal in the Bill as it stands. We should be creating a precedent which could be used in other parts of the United Kingdom. What would there be to stop somebody coming up with the idea that a Minister could be the Lord Mayor of London? In terms of population, London is at least four times larger than Wales. What would be wrong in somebody claiming that? Why is the privilege merely for Wales? When the English regional bodies are brought into being, although they will not be elected, quite a number of them will represent a larger population—

Lord Howie of Troon

My Lords, will my noble friend consider that such a system seems to work well enough in Paris? If it works in Paris, it could probably work in Cardiff, Leeds or Manchester.

Lord Dean of Beswick

My Lords, I am not talking about Manchester; I am talking about the proposal for Wales. The case that is being made; namely that total experience is available, is pretty thin. Some years ago, a Conservative, against all the wishes of people in the hinterland, decided to form metropolitan corporations. Some of the areas they covered were larger than Wales in population terms, but they were not run on a "dual purpose" basis. The elected members made the policy and those authorities were soon manned by people with adequate training from other authorities under the political guidance of the parties that happened to win the elections.

There is no need for the system of dual responsibility that is suggested. It would be to embark on a slippery slope. I am not prepared to say that I shall vote for the proposal. However, I offer words of caution: this would be a difficult and dangerous precedent to set. We cannot suddenly take one part of the United Kingdom and say that it is different—other than Northern Ireland, where the situation has to be catered for differently. I should not like to see any Minister, whoever he is, running an authority such as the assembly or the new Scottish parliament. That is alien to our beliefs. There could be a clash of interest. My view is that it should be left alone.

Lord Falconer of Thoroton

My Lords, given that your Lordships have already amended Clause 12 of the Bill to provide that a Minister of the Crown is disqualified from membership of the assembly, this new amendment is wholly unnecessary, as I believe the noble Lord, Lord Roberts of Conway, acknowledges. If such a person cannot be a member of the assembly, neither can he be a member of the executive committee. However, I understand from the noble Lord's remarks in moving the amendment that he wants to provide a menu to the Commons from which they can select, even though the items may be unnecessary and even inconsistent. The amendment is unnecessary.

Perhaps your Lordships will allow me, however, to deal with the substance of the matter. It is said that a clear conflict of interest would arise for a person who was simultaneously a Minister of the Crown and a member of the executive committee. Accepting that argument for the purposes of the debate, does it follow that a provision is required in the Bill to deal with it? We believe it does not.

I invite your Lordships to consider the position from the point of view of the Prime Minister of the day. He or she will be free to recommend for appointment as a Minister of the Crown any Member of Parliament. In so doing, he or she will have as the primary consideration whether the potential appointee is best placed to do the job, both individually and as a Member of the Government as a whole. If the Prime Minister takes the view that a particular person, already serving as an assembly secretary, is the best appointee also to be a Minister of the Crown, I do not see that it is our place, by a provision in this Bill, to deny the Prime Minister that choice.

Lord Crickhowell

My Lords, we have now had the clearest declaration of the intention of Her Majesty's Government to move to a presidential, rather than a parliamentary, system of government that I have ever heard from Benches in this House.

Lord Falconer of Thoroton

My Lords, I could not disagree more. I should have thought that it is an established part of our constitution that the Prime Minister of the day is entitled to pick his or her Ministers from Members of Parliament, whether in this House or the other place. To suggest that that basic constitutional principle equals moving to a presidential system is wrong. The Prime Minister will be accountable for his nomination, and will, if necessary, have to defend it—that is the proper constitutional way.

Let us consider then the situation from the assembly's standpoint. If the assembly is content to have as a member of the executive committee someone who is already a Minister of the Crown, or if it is content to retain as an assembly secretary someone who is subsequently appointed as a Minister of the Crown, why should your Lordships seek to deny that by amendment to the Bill? The assembly—a mature, democratic body accountable to its electorate—will have taken such decisions in full knowledge of the competing pressures to which, under the noble Lord's scenario, the individual will inevitably be subject. If the assembly decides that the benefits of the arrangement outweigh the disadvantages, that, I suggest, is an assessment which it should be permitted to make and be accountable for.

So even if noble Lords accept the assessment that conflicts of interest would undoubtedly ensue, it by no means follows that Bill provision of the type proposed in these amendments should inevitably result. In my submission, these decisions should be left to the assembly and the Prime Minister of the day, in full knowledge of the circumstances and accountable for the consequences.

As I have already said, in the light of the existing amendment to Clause 12, this amendment serves no useful purpose. It is clearly otiose and its inclusion in the Bill would not reflect well on the House. I ask that it be withdrawn.

Lord Roberts of Conwy

My Lords, as I said earlier, the passing of this amendment would give the Commons a clear choice. It is a narrower amendment than the one that was carried by my noble friend Lord Crickhowell.

I wish to make two points—first to the noble Lord, Lord Elis-Thomas. There is no trace of any antipathy towards Mr. Ron Davies in any of the remarks that my noble friend or I, or anyone else that I am aware of on these Benches, has made. I must warn the noble Lord that he should be careful what he says, otherwise he may well be accused of "cronyism".

I am grateful to the noble and learned Lord for his observations, but what we are concerned about in the amendment is the nonsense that is made of devolution, if both the offices are held by the same person. As I said in my speech, under Clause 22 the Secretary of State transfers his functions to the assembly. Under another clause in the Bill, as first secretary he takes up those functions again. He is accountable for them to the assembly. So where does that leave devolution when he has given away his functions with one hand, as Secretary of State, and taken them back again with the other, as first secretary?

Lord Elis-Thomas

My Lords, perhaps the noble Lord will permit me to intervene. Let us nail this point, once and for all. Mr. Ron Davies, our Secretary of State, in becoming the first secretary of the assembly is in precisely the same position as every public official in that great department of state, the Welsh Office. Those civil servants, by virtue of the transfer order, are being transferred; indeed they are transferring themselves from being servants of the Secretary of State to being servants of the assembly. They are in a precisely similar position. We are talking about a transitional period while the assembly is established.

The noble Lord denies that this is a personal attack on Mr. Ron Davies. Why do noble Lords always return to it? Why do they seek to legislate against an individual whose political position will surely be decided by the electorate?

Lord Roberts of Conwy

My Lords, we return to it for the simple reason that it makes a nonsense of devolution. I stress again that we have nothing personal against Mr. Ron Davies. He has always been something of a friend of mine.

Several noble Lords


Lord Roberts of Conwy

My Lords, I have respect for him. But the whole purpose of devolution is to transfer the functions of the Secretary of State to the assembly. If, as is clearly the case, the Secretary of State, Mr. Davies, actually becomes the first secretary of the assembly, although it may be subject to an election, it is a contradiction in terms. It makes a nonsense of devolution.

I am bound to tell the noble and learned Lord that were it not for the fact that there is a gentlemen's agreement between both Houses that we shall not divide, I would otherwise divide this House. I have a fair idea that we might win. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hoyle

My Lords, I beg to move that further proceedings after Third Reading be now adjourned. In moving this Motion, may I suggest that the House returns to this business not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.