Lords Sitting of 2 June 1998

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

Chinook Helicopter Accident Inquiry
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
Whether, in the light of the deliberations of the House of Commons Select Committee on Defence, they propose to review the findings of the Royal Air Force board of inquiry into the crash of Helicopter Flight No. ZD 576 at the Mull of Kintyre on 2nd June 1994.
The Minister of State, Ministry of Defence (Lord Gilbert): My Lords, the Select Committee made a detailed examination of the lessons to be learned from this tragic accident. The committee made it clear that it was not its intention to become a further court of appeal, and its report seeks neither to challenge nor to endorse the findings of previous inquiries into the crash. It has unanimously concluded, however, that there was no evidence to support claims that design flaws in the Chinook Mk2 or in its components contributed to this crash. The report includes no recommendations which would prompt the MoD to review the findings of the RAF's board of inquiry.
Lord Chalfont: My Lords, I express the customary appreciation for the Minister's very full Answer, but will he accept that I am genuinely mystified by the Government's position on this? I am not trying to cause the noble Lord problems, but can he answer one simple question, if possible in a simple way? Given the fact that the president of the Royal Air Force board of inquiry said that no blame could be attached to the pilots, given the fact that the fatal accident inquiry could not attribute any cause to the accident, and given the fact that numerous experts both inside and outside the Royal Air Force have cast doubt on the verdict and on the reliability of certain pieces of equipment, is the Minister seriously telling the House that the Government say and believe that there is absolutely no doubt whatever about the cause of the accident, which is what service regulations require?
Lord Gilbert: My Lords, as the noble Lord is well aware—he has given a great deal of attention to this matter with his usual perspicacity—the fact is that this matter has been reviewed by two sets of Ministers in the previous government and by Ministers in this Government. I had conversations only yesterday with the Secretary of State and with the Minister of State for the Armed Forces on this subject and I regret to have to tell the noble Lord that we see no reason to change the view taken by Ministers in either this
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Government or the previous government. The fact of the matter is that there is no evidence whatever of any combination of possible minor problems or major difficulties which would have affected the skills of the aircrew and prevented them from continuing to fly in conditions of low and deteriorating visibility, at low altitude, below the safety altitude, flying at high speed straight into the obstacle that they encountered with tragic consequences.
I am happy to invite the noble Lord to come to the Ministry of Defence and to review for himself all the material which has been at the disposal of Ministers and which has led them to come to this unhappy conclusion.
Lord Trefgarne: My Lords, is the Minister aware that the effectiveness of RAF boards of inquiry has not always been universally admired? Can he say what expertise was available to the board of inquiry in this case, and in particular whether a qualified accident investigator was available, as frequently was not the case in the past?
Lord Gilbert: My Lords, I cannot answer the noble Lord's specific question about an accident investigator, but I have full confidence in Royal Air Force boards of inquiry. One problem is that people find it incredible that skilled pilots could find themselves in this position. However, the fact is—it is a sad state of affairs—that a high proportion of accidents involving skilled pilots, both military and civilian pilots and pilots of scheduled airlines, are due to pilot error. Unfortunately, that is a fact of life.
Lord Burnham: My Lords, is it not the case that helicopter pilots have absolutely clear-cut instructions that on entering cloud they must rise above any nearby landmass and that the only reason for not doing so is engine failure? In this case, the accident investigators proved quite categorically that the engines were on full power and that there was no reason whatever why the pilot should not have taken his aircraft up and avoided the mountain.
Lord Gilbert: My Lords, I am, as always, obliged to the noble Lord for his helpful and clarifying remarks. However, there was more than one way of avoiding the obstacle. The helicopter was approaching a waypoint at which the crew had expected to have a change of course of something like 15 degrees to port. Had they done that, the obstacle of the Mull of Kintyre would have been avoided. I entirely agree with the noble Lord's other remarks.
Lord Brightman: My Lords, does the Minister appreciate that we have here the exact equivalent of a verdict of manslaughter without hearing the defence? Is that safe?
Lord Gilbert: My Lords, I am not legally qualified to comment on the noble and learned Lord's remarks about a verdict of manslaughter. It is very unfortunate that we have absolutely no survivors to comment on

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what was happening on the flight deck during the helicopter's last few moments. There is absolutely no evidence whatever—this was confirmed by the recent unanimous report from the Select Committee—that there was anything wrong with the helicopter itself.
Lord Kilbracken: My Lords, the Minister said—at least I understood him to say—that the aircraft was flying at high speed. Can he say how that was known and at what speed the aircraft was flying?
Lord Gilbert: My Lords, the aircraft had an indicated air speed of about 130 knots and a tail-wind of 20 to 30 knots.
Lord Hooson: My Lords, does the Minister agree that the real problem here is that the inquiry found nothing wrong with the aircraft, but according to the records there was also nothing wrong with the actions of the pilot and crew? Is it not the case that the inquiry concluded that since there was nothing wrong with the aircraft it had to blame the pilots?
Lord Gilbert: My Lords, the simple question is: why was the aircraft where it was? Even if one made a series of heroic assumptions, for example that just at the vital moment before impact there had been a catastrophic systems failure in the aircraft, the aircraft should not have been where it was. I am afraid that it is as simple as that.
The Earl of Carlisle: My Lords, can the noble Lord assure the House that a black box will be fitted to every Chinook aircraft so that if there are future accidents we will know what happened?
Lord Gilbert: My Lords, there is a programme for fitting black boxes to Royal Air Force aircraft.
Lord Ackner: My Lords, is the Minister aware that the relevant RAF regulation states that in only those cases in which there is absolutely no doubt should deceased air crew be found negligent? Is the Minister satisfied that that very heavy onus was borne in mind by those who found negligence; or is a possible explanation that they reached their conclusion on the basis that it was highly probable that it was negligence?
Lord Gilbert: My Lords, I can assure the noble and learned Lord that precisely those considerations were in the minds of the distinguished Air Force officers who came to the painful conclusion to which they felt compelled to come. It would have been far easier for those officers to have taken the view that there was something wrong with the aircraft. It would have been much more painful for them to conclude that very senior, skilful young pilots had committed an act of negligence.

Northern Ireland: School Funding
2.45 p.m.
Baroness Young: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I apologise to the House for the fact that the Question should read "Library Boards".
The amended Question is as follows:
To ask Her Majesty's Government:
Why they are proposing to transfer the funding of voluntary grammar schools from the Northern Ireland Department of Education to the Education and Libraries Boards.
Baroness Farrington of Ribbleton: My Lords, the main reason for this proposal is to reduce the number of funding formulae and thus contribute to the Government's stated policy objective of full commonality of schools funding across the Province. The vast majority of schools are already funded by the boards and there is no convincing reason for funding some schools separately.
Baroness Young: My Lords, while thanking the noble Baroness for her reply, as is only proper, I find the response very disappointing. Is the noble Baroness aware that these schools comprise about one quarter of the secondary schools in Northern Ireland and that they are regarded within the United Kingdom as some of the best schools? Moreover, it is generally considered that these schools are some of the few organisations which, for over 50 years, have been a shining example of cross-community co-operation. They are very concerned at what is happening as regards their status at the present time.
Baroness Farrington of Ribbleton: My Lords, I join the noble Baroness is paying tribute to the work of the schools. There is little logic in having a different funding source for two different schools. A transfer of funding responsibility to the boards will reduce the number currently in operation in the Province. It will ensure also greater transparency and will simplify administration. It will also remove the perception—false but commonly held—in controlled and maintained schools that voluntary grammar schools and grant-maintained integrated schools are treated more favourably than they are because of their direct funding relationship with the department. Under the new arrangements, they will continue to be funded on a cash basis and proper account will be taken of differences in their needs, such as differences in VAT and rates.
Lord Molyneaux of Killead: My Lords, does the Minister agree that the proposed change will create a great deal of disparity in the funding of the voluntary grammar schools in Northern Ireland and will deprive those schools of direct access to the department over a whole range of issues that are of vital importance? Given the uncertain future of the boards and their

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number, surely it would be much better to adhere to the present system which has worked very efficiently and well.
Baroness Farrington of Ribbleton: My Lords, the Government believe that the new arrangements which will pay funds directly to the schools will protect their existing record of success, maintain their integrity and further government policy.
Lord Hylton: My Lords, recognising the high quality of the schools in question, is it not the case that education will become a devolved subject under the recent agreement which has now been approved by referendum? Will that not restore some democratic accountability to the whole situation?
Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Hylton, is correct. This will be a matter for the Northern Ireland assembly. No decision has yet been taken on the timing of the transfer of funding, and the timetable will be dictated by the progress made this year on the development of the common formula.
Lord Cope of Berkeley: My Lords, is it not a little odd that this old Labour attack on the independence of these schools should take place at a time when the policy of the Department for Education of England and Wales—or at least the policy of Mr. Byers—appears to give greater financial independence to schools? Does the noble Baroness agree that to push through such a radical reform at this stage at breakneck speed demonstrates a rather arrogant attitude towards the new Northern Ireland assembly which the people of the Province are in the process of electing at the present time?
Baroness Farrington of Ribbleton: My Lords, it is not part of the Government's policy to act with arrogance or to do anything to damage the success of the proposed NI assembly. There has been adequate consultation with the voluntary grammar schools and the grant-maintained integrated schools on the transfer of the responsibility. The funds for those schools will be protected.
Lord Campbell of Alloway: My Lords, what benefit is the proposed transfer thought to confer on the children?
Baroness Farrington of Ribbleton: My Lords, the benefits include transparency, which will remove the false perception of other schools within the system that the voluntary grammar schools and the grant-maintained integrated schools are funded in a beneficial way. It will remove that sense of difference and the false perception of unfair treatment.

Social Security: Unclaimed Benefits
2.50 p.m.
Lord Morris of Manchester Lord Morris of Manchester asked Her Majesty's Government:
What action they are taking to increase the take-up of unclaimed social security benefits.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, the Government want everyone who thinks that they may be entitled to a benefit to make a claim. We have already taken steps to encourage claims to industrial injuries benefit and other in-work benefits. Given my noble friend's long-standing commitment to disability issues, he may have in mind the take-up of DLA and attendance allowance which is estimated to be about 50 per cent. If that is his concern, we share it. We are investigating why that should be the case.
Lord Morris of Manchester: My Lords, it was my noble friend, much to her credit, who first disclosed here that, far from cheating the system, about half the number of disabled people do not claim their disability benefits. Is she aware of what the disability organisations now call "the stigma attached to claiming—all the more so because of baseless allegations of fraud"? How do the Government respond to the Commons Select Committee on Social Security's withering criticisms of the costly Benefit Integrity Project which,
"uncovered hardly any fraud and caused great distress"?
And what total sums go unclaimed in disability benefits and in income support by the frail elderly people Age Concern and Help the Aged work so humanely to help?
Baroness Hollis of Heigham: My Lords, my noble friend asks a number of questions. On the last one, if, for example, 90 per cent. of disabled people entitled to DLA and AA claimed their moneys, expenditure would go up from about £7.5 billion to £13 billion on that benefit alone. Equally, we know that something like 1 million elderly people—mainly single women over 75—fail to claim the income support to which they are entitled and therefore miss something like £17 a week. We are anxious that they should take up that money. The wider point that my noble friend raises is right: entitlement is a two-way process. The Government have the responsibility to ensure that the right money is going to the right people—that people are not claiming when they should not but claim the money to which they are entitled. As my noble friend said, out of the 72,000 or so benefit integrity cases that the Government have reviewed—about 2,000 were followed up in greater detail—only five cases have gone forward to the courts. There is very little fraud. There is a great deal of error and serious under-claiming. The Government must address all of those problems.
Lord Higgins: My Lords, so far as concerns the take-up of unclaimed social security benefits generally, will the Minister tell us whether there is any exchange

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of information between the Inland Revenue and other departments, as there is clearly concern that that might be so? If there is such an exchange, is it done on an individual case basis; and at what level is it approved within the Civil Service?
Baroness Hollis of Heigham: My Lords, I shall have to write in greater detail on this to the noble Lord. My memory is that when we dealt with a previous social security administration Bill there were powers within the confines—if I may put it this way—of data protection to exchange information through data matching to ensure that, for example, where there was evidence of abuse or fraud that person could be checked through other systems. Clearly that has to be through data protection. I think that the noble Lord will find that that is primarily an exchange of information between the DSS and local authority-administered social security benefits such as housing benefit. There are additional protections vis-à-vis the Inland Revenue. I shall write to the noble Lord, because clearly the Inland Revenue and the protection of the privacy of Inland Revenue records are sensitive subjects, and rightly so.
Baroness Williams of Crosby: My Lords, what proportion of those who take the all-work test have failed to pass it? Of those who failed to pass it, what proportion to the Minister's knowledge have subsequently gained work? Is she prepared to reassess the cases of those who failed the test who after a year have been unable to obtain work of any kind that they can do?
Baroness Hollis of Heigham: My Lords, about one in six people who take the all-work test are regarded as fit for work. So about 18 per cent.—if I may put it that way—fail it. There is research in progress, but we do not yet know how many go on to find full-time work. We expect to have those findings soon. The noble Baroness is right to highlight a problem: that the current all-work test which says that one is either fit for work or disabled—either/or—does not reflect the reality of the continuum of disability from which many long-term sick and disabled people suffer. That is why in the Green Paper we are committed to reform of the all-work test. We hope that we shall have the co-operation of the House in so doing.
Baroness Castle of Blackburn: Does not the Minister's reply show that—in her own words—something like a million pensioners are failing to claim the means-tested benefits to which they are entitled? Is not the lesson of that that even the poor have dignity and find it an affront to have to claim means-tested benefits? Does she therefore agree that the real answer is to build up universal benefits as of right, to which people contribute during their working lives?
Baroness Hollis of Heigham: My Lords, my noble friend is obviously right. Many pensioners, particularly women over 75, as I said, do not claim the income support to which they are entitled. At the moment we
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are engaged in about nine project areas, involving 50,000 pensioners, to see why they do not take up that money. We believe that it is a mixture of complexity, ignorance and the stigma associated with means testing in the eyes of many older people. On average, about two-thirds of all pensioners claim the income support to which they are entitled. That is a means-tested benefit. About 50 per cent. only of disabled people appear to be claiming DLA, which of course is not a means-tested benefit. It is not necessarily the case that means testing as such is the major barrier to claims.
The Countess of Mar: My Lords, does the Minister appreciate that individuals suffering from ME or chronic fatigue syndrome are in a particularly difficult situation when they claim social security benefits because their condition varies so much from day to day? Many of them have had their benefits withdrawn on the basis that they are fit for work on a particular day, although they are not on other days. Will the review take that into account?
Baroness Hollis of Heigham: My Lords, I have had a number of helpful letters from organisations representing ME sufferers. The all-work test, with its either/or requirement, is inappropriate for those who suffer from fluctuating conditions. That is one of the reasons why we need to review the all-work test. We shall be taking such conditions and illnesses into account.
Lord Dholakia: My Lords, what efforts are being made to publicise such information in ethnic minority newspapers so that those who have language difficulties can exercise their full rights in claiming the benefits?
Baroness Hollis of Heigham: My Lords, that is an important point. We are taking steps to publicise the situation. It may be that we are not doing enough. I shall follow the matter up and let the noble Lord know exactly what we are doing on that.
Lord Ashley of Stoke: My Lords, is my noble friend aware that her sympathetic response is warmly appreciated? However, it will require special measures to solve the problem of low take-up. Will the Government consider a special disability benefits week so that the availability of benefits can be highlighted and the rights of eligible people emphasised, with the stigma of applying for those benefits removed?
Baroness Hollis of Heigham: My Lords, we have already engaged in campaigns to promote—and successfully so, I believe—the take-up of industrial injuries and in-work benefits, for example, family credit and income support. However, there is a specific problem with disability benefits. We do not know why some of the benefits are not being claimed. It is not that they are means tested, because many are not. It may be that the forms are complex. It may be that healthcare professionals do not promote them in the way they should. I welcome the advice of my noble friends on this matter. I propose to raise the issue with the

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disability benefits forum, with which we are consulting as to how best to ensure that disabled people claim the benefits to which they are entitled. My noble friend and I are entirely at one on this.
Noble Lords: Next Question!
The Lord Privy Seal (Lord Richard): My Lords, the noble Baroness, Lady Knight, has been trying to ask a question. I should have thought that we could perhaps take the question.
Baroness Knight of Collingtree: My Lords, I am most grateful. Can the Minister assure the House that when a couple in receipt of well over £3,000 a year draw child benefit they pay tax on that benefit?
Baroness Hollis of Heigham: My Lords, I apologise that I am having trouble with the microphones on this side of the Chamber. If I am right,. the noble Baroness asked whether we shall be considering taxing child benefit. That is a matter for the Chancellor.

A.1: Upgrading of Northern Section
3.1 p.m.
Lord Selkirk of Douglas Lord Selkirk of Douglas asked Her Majesty's Government:
What progress is being made in planning the next phase or phases upgrading the A.1 to dual carriageway status (a) between Haddington and Dunbar, (b) between Dunbar and the dualling at the Border, and (c) between the Border and Newcastle-upon-Tyne.
Baroness Ramsay of Cartvale: My Lords, I am tempted to say that it is rather like having three Questions for the price of one, but I shall try to answer briefly.
The dualling schemes between Haddington and Dunbar, and indeed around Alnwick, are subject to the strategic review of trunk roads to be completed later this year. Between Dunbar and the Border two minor schemes were completed earlier this year; and the construction of a third is expected to start around September. Other improvements have been identified between the Border and Newcastle. Subject to the availability of funds, and completion of any statutory procedures, work could start on the Felton to Lanehead section next year.
Lord Selkirk of Douglas: My Lords, I thank the Minister for her reply. Can I ask for an assurance that as a matter of priority, planning for the future dualling will go ahead so that when resources become available work on construction can start, both in the interests of reducing casualties on those sections of the road and of improving the economic competitiveness of the east of Scotland and north-east of England?
Baroness Ramsay of Cartvale: My Lords, the strategic review of the trunk road programme which was
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announced by the then Minister for Transport at the Scottish Office in June 1997 forms an important part of the Government's fundamental review of transport policy which was included in their manifesto.
The review examines the rationale behind new roads construction, weighing road improvements against other transport options, and taking into account the criteria of accessibility, safety, economy, environmental impact and integration. All those issues are being considered. It would be wrong and inappropriate to anticipate the result of that review by giving any specific assurance about any particular area.
Lord Steel of Aikwood: My Lords, is the Minister aware that it gives me particular pleasure to support the noble Lord in his Question since he was the Minister whom I used to ask the same Question in another place?
The dualling of the road from Edinburgh to Newcastle is of great importance. While considering the total transport needs of the area, will the noble Baroness bear in mind the increasing case for reopening the Waverley railway route from Edinburgh to Galashiels, not only in the interests of the economy north of the Border but of the environment and the city? There are now new substantial housing developments in Midlothian which make the project more viable.
Baroness Ramsay of Cartvale: My Lords, I am sure that that will indeed be taken into account in the overall review. The noble Lord may well be aware—if he is not, he will be interested to know—that a freight scheme is under development at present. The Scottish Office is in regular contact with the developers. Subject to parliamentary approval, it is anticipated that the developer will submit an application for financial assistance under the freight facilities grant scheme. It would be inappropriate for me to comment further in advance of parliamentary approval.
Lord Campbell of Croy: My Lords, is the Scottish Office still responsible for trunk roads north of the Border, and the Department of the Environment for trunk roads in England and financed respectively? If so, can the Minister give an assurance that improvement of the A.1 in Scotland is not being delayed because adjoining work south of Berwick is receiving less priority?
Baroness Ramsay of Cartvale: My Lords, the situation is as it has always been. Noble Lords opposite who have been in office in the Scottish Office will be well aware of the situation. The responsibilities and priorities remain the same. What was always in the hands of the Scottish Office Ministers remains in their hands.
As some noble Lords opposite will know, the A.1 Steering Group was formed in 1990. It comprises representatives of the Scottish Office, the then Department of Transport, the Highways Agency, local

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councils and police. It is still in existence and meets once a year. It is in constant and regular contact between meetings.

Community Care (Residential Accommodation) Bill
3.6 p.m.
Baroness Pitkeathley: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Pitkeathley.)
On Question, Motion agreed to.

Government of Wales Bill
3.7 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 21 [Introductory]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 50:
Page 12, line 37, after ("functions") insert (", and no others,").
The noble Lord said: If the national assembly is the heart of the Bill, the functions clauses are its arteries. We come to them now in Part II of the Bill. Before I introduce the amendment, perhaps I may draw the Committee's attention, as I did at the start of our first day in Committee, to the substantial amendments tabled by the Government. The Minister was good enough to forewarn us by letter of some of those amendments, and we thank him for doing so. We are as anxious as the Government to have the Bill in the best state possible. If that means dropping a clause or two, and inserting yet another schedule as the Government propose, so be it. But I am sure that the Minister will understand that the more government amendments we have, the more inclined we are to probe, as helpfully and expeditiously as possible, to see whether the changes are right.
Since we tabled our amendments, the Government have published their draft Transfer of Functions (National Assembly for Wales) Order 1999—a helpful and substantial guide which answers some of our questions and poses rather more. It is the first order and represents a trawl through some 300 Acts of Parliament for Secretary of State functions, including powers and duties to be transferred, after consultation, to the
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assembly. It is clear that the order may be the first of a number; and that there is no limit, other than government policy, on the numbers or nature of functions that can be transferred from past, present or future legislation.
We suggest a limitation in our first two amendments—namely, Amendments Nos. 50 and 51—which would permit only a one-off transfer under the Bill. I believe that there is a real danger of the assembly being overwhelmed by having all sorts of functions thrust upon it. Surely it will have enough to be getting on with when this order comes into effect.
Members of the Committee will have noticed that the transfer of power is all one way; in other words, there is no provision for the transfer of a function back from the assembly to the Secretary of State. Clause 22(4) envisages the possibility of the variation or revocation of an order, but the noble and learned Lord the Solicitor General made it clear on Second Reading that this subsection was to be used in the event of an error occurring and a correction being necessary.
Our amendments to Clause 22 seek to make the transfer of functions possible in either direction. That seems to us to be a reasonable precaution in the interests of good government, should anything go wrong at the assembly in the exercise of any of those functions. It would put the assembly on its mettle to make good use of the powers that it has and, at the same time, perhaps demolish the assumption that the assembly can only increase its powers whatever happens. Our Amendment No. 67, which is a proposed new clause, provides for the Secretary of State to intervene if the assembly fails to discharge a function satisfactorily. However, I believe that my noble friend Lord Mackay of Ardbrecknish will say a little more later about that suggested new clause.
One of our deepest concerns is that functions are to be transferred by order, subject to affirmative resolution by both Chambers. We are all aware that such orders can be disposed of in the other place by an hour and a half's debate and that they are unamendable there. According to Erskine May, Members of this Chamber can propose an affirmative resolution in one of three ways: first, by seeking to negative the Motion—but this, as I understand it, is not general practice nowadays; secondly, by amendment, the effect of which is to withhold agreement to the Motion for approval; or, thirdly, by amendment or separate Motion expressing criticism of the instrument without necessarily challenging it directly.
The long and the short of it is that orders of this kind, and the procedure associated with them, are far from adequate to deal with the substance of what we have before us—that is to say, functions, including powers and duties, culled from 300 Acts of Parliament and transferred to a body that the authors of those Acts probably never even dreamed of. Once the functions have been transferred to the assembly, this Parliament will have no control over the secondary legislation which may flow from it, except in special circumstances noted in Clause 45.
The assembly will have its own scrutiny and approval procedures and, in that context, it is only fair to note the views expressed by the Select Committee on Delegated

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Powers and Deregulation in its 18th report, which examined the Bill. Referring to provisions transferring the exercise of existing legislative powers to the assembly, the Select Committee states that this,
"raises the new question of whether it is appropriate that a power granted by the Westminster Parliament but made subject to parliamentary control should be transferred to the Assembly when the power will cease to be subject to parliamentary control".
I believe that that puts the matter in a nutshell. The committee went on to say that it considered this to be an issue for this Chamber and that its function was to consider the effectiveness of the scrutiny process by the assembly. The Select Committee concluded that it was "suitably rigorous".
Schedule 2 to the Bill lists the 18 policy areas in which powers must be transferred before the assembly begins its work. Clause 22(2) explains the requirement which is,
"for the transfer of such functions in each of the fields specified in Schedule 2 as the Secretary of State considers appropriate".
The purpose of Amendments Nos. 56 and 59 is to remove the requirement that all the policy areas listed in Schedule 2 must be covered willy-nilly, as it were, whatever the results of consultation on the order over a period of nine months may reveal. Why is it necessary that some functions must be transferred from each of those fields by the time that the assembly is established? The answer to that question is not clear.
Clause 22(1)(a) is very widely drawn. It provides for the,
"transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales".
I believe that Members of the Committee will agree that that is a very broad power. Indeed, it could apply to any Minister—for example, the Home Secretary, the Secretary of State for Social Services and even the Chancellor of the Exchequer—and the function could be transferred by order. I am advised that the negative resolution procedure might suffice under the Ministers of the Crown Act 1975. Moreover, tax-raising powers might be transferred, although we have the word of the noble and learned Lord the Solicitor General that that is not the Government's intention. However, the principle that functions transferred should be limited in some way is important and primary legislation should be required for major change.
My noble friend Lord Griffiths of Fforestfach expressed his view most persuasively on Second Reading. Having argued for a clean and clear settlement so that both the assembly in Cardiff and we in Westminster know precisely where we stand, he went on to say that,
"the spirit in which we … approach the issue must be one of trust and encouragement to the assembly, with the result that devolution … must be seen as a process, not an event … On the other hand, if for example this Government or a future government were to consider transferring a function such as giving tax-raising powers to the Welsh assembly, that clearly should be the subject of primary legislation. As I read the Bill, I must say I am not clear as to exactly what will happen and how much discretion lies with the Secretary of State or indeed the Government".—[Official Report, 21/4/98; col. 1088.]
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We are in exactly the same position of uncertainty. About half the total government expenditure in Wales lies outside the control of the Welsh Secretary of State.
It is possible that the assembly may have its eyes on some of this expenditure and the functions associated with it and that it may argue that it should have responsibility for it. On the other hand, it may not wish to have responsibility for a particular item which the Government are anxious to foist upon it. We are accustomed to hearing local authorities complaining of extra duties being imposed upon them without adequate resources to discharge them. In either case, some form of limitation for function transfers would seem to be advisable. The Government should tell us whether there is any limit to the order-making power for the transfer of functions to the assembly or whether it is open ended and one way, whatever happens, as Clause 22 would lead us to believe.
Finally, perhaps I may comment briefly on Amendments Nos. 65 and 66 which are included in this first group. The simple point behind our amendment is that Parliament, being the order-making body, must give sole approval for a variation or a revocation of its order. It is inconceivable that the assembly would be unaware of an order once it is made or of a defect requiring a change, but that its approval, as well as the approval of Parliament, should be necessary seems superfluous and might lead to conflict. Let us suppose that for some reason the assembly refused to give approval when Parliament had already done so. There would be a cockpit situation. I am sure that the need for dual approval is wrong, and perhaps my noble friends are nearer the mark with their Amendment No. 66 which requires consultation only with the assembly. Surely, it must be a matter of courtesy to inform the assembly. But as to its approval of the revocation or change of an order made by Parliament, that is not necessary. I beg to move.
The Chairman of Committees (Lord Boston of Faversham): As Amendments Nos. 52 and 65 are also being spoken to, I should point out to the Committee that, if Amendment No. 52 is agreed to, I cannot call Amendments Nos. 53 to 59, inclusive, and that, if Amendment No. 65 is agreed to, I cannot call Amendment No. 66.
Lord Stanley of Alderley: My Amendment No. 66 is grouped with this amendment. It is the first of a number tabled in my name and that of my noble friend Lord Courtown. At this stage, their purpose is to try to discover how the Bill will affect farming and the rural economy. I emphasise that I hope that they will be probing, provided of course that the Minister gives me a sensible, and not a Dark Ages, answer, which I am sure he will.
I remind the Minister that agriculture was not devolved in the 1978 Wales Bill. Bearing in mind that for better or worse Welsh agriculture is irreversibly tied into the common agricultural policy and world markets far more so now than in 1978, I wonder why this change of heart by the Labour Government has taken place; or do the Government agree not at all with the noble Lords,

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Lord Callaghan and Lord Cledwyn, who were very much involved in the 1978 Bill and therefore were instrumental in deciding that agriculture should not then be devolved?
As I agreed on 13th June 1978 with the Labour Government's decision not to devolve agriculture, I hope that the Minister will agree, first, that I am in good company and understand why I am somewhat doubtful about the practicality of devolving agriculture. In short, I believe that on the question of devolving agriculture the Government are guilty until they prove themself innocent.
I have read the recent transfer order, plus the explanation provided by the Government, and I find it extremely difficult to understand. Indeed, I am not sure that it is worth the paper it is written on. I say that for two reasons. First, only 36 per cent. of the Acts to be devolved are mentioned in the guidance notes. As to the rest, presumably no decision has been made, or if it has we have not been told, or the Government do not want to tell us. Therefore, I look forward to hearing the explanation. Secondly, like the first transfer order, it is not definitive. Those Acts marked to be devolved could, as I understand it, in the end not be so devolved; or those not mentioned could be devolved. I hope that your Lordships will realise why I am somewhat confused.
If the Minister therefore believes that we are querying some matters which appear to him to be perfectly obvious or repeating matters which have been raised by my noble friends on the Front Bench, I can assure him that the lateness of the transfer order, after it had been through the other place and after we had had one day in Committee, and with the guidance notes and the groupings, makes it extremely difficult for those who are not full-time politicians. But obviously the Minister believes that ordinary people should not become involved in Parliament and that Parliament should be left in the hands of full-time politicians or even the Prime Minister, which I understand is now the new Labour gospel. Having said that, I hope that the Minister realises that the way in which he replies to my amendments might make it much easier for the various farming organisations to respond constructively to the Government's autumn consultation.
I am sorry to take time, but Clause 22 is crucial, as was explained by my noble friend, because it explains the mechanism for transferring ministerial functions to the assembly by an Order in Council. A draft of the first Order in Council must be laid before Parliament before the first ordinary election next year. The Government have published two drafts of the first transfer order—the one I have mentioned—and are committed to public consultation on the subject this autumn. Under the terms of subsection (4) of the clause relating to the Orders in Council, they are subject to the affirmative procedure, as pointed out by my noble friend. Therefore, drafts must be consciously approved by Parliament. However, as my noble friend mentioned, the subsection provides that in the case of an Order in Council which varies or revokes a previous order, the order cannot be approved
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by Parliament unless a draft has been laid before and approved by resolution of the assembly. I think that is where we will have some trouble.
That means that once functions have been transferred to the assembly by means of the first Order in Council, the assembly has an absolute right of veto on future changes to those arrangements. If it were subsequently decided at UK Government level that a function which had been devolved ought instead to have been retained for some national reason, it can be transferred back to the UK Government and Parliament only if the assembly agrees to that. I am not a politician, but knowing what politicians are like it seems likely that the assembly would resist any transfer back of a function, however compelling the case for doing so in policy terms.
The rigidity of the clauses drafted works the other way, too. In other words, if the UK Government subsequently decide that they wish to transfer some additional function to the assembly, the assembly could refuse to accept the proposed function. Your Lordships might think that that is strange. I do not. Although I accept that it is a less likely position than the first problem, it could nonetheless lead to a difficulty in which the assembly perhaps wishes to evade responsibility for a politically unpopular or sensitive matter or one which involves limiting financial funds.
The purpose of Amendment No. 66 is to retain flexibility whereby the Secretary of State would consult with the assembly about subsequent Orders in Council which propose to transfer more functions or to claw them back, but would not give the assembly the veto that it has on this process as the clause is drafted, or as I understand the clause is drafted. The Secretary of State is, of course, accountable to Parliament for his actions. The formula used in this amendment appears in Clause 32 where the Secretary of State is obliged to consult the assembly about the Government's legislative programme.
In case I have not made it clear, I feel strongly about the ability to transfer matters to or from the assembly being made easier and quicker. Who knows what disaster may happen in the future that needs immediate action? Chernobyl springs to mind.
3.30 p.m.
Lord Dixon-Smith: I wish to speak to Amendment No. 58 which stands in my name and that of the noble Earl, Lord Northesk. The purpose of the amendment is simply to ensure that the order transferring powers to the national assembly for Wales is published well before any election is due and, one hopes, well before candidates are selected, so that they may know what the functions of the assembly are to be. I am extremely grateful to the noble and learned Lord, Lord Falconer of Thoroton, for a letter which answered some of the points I raised at Second Reading. He states,
"I can confirm that we intend that the Order should be made well before the elections on 6 May".
I hope that when the Minister replies he can assure me that that will take place well in advance of candidates being selected to enable them to have sufficient time to

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consider their functions before they make the rather robust decision to stand for the assembly. The letter continues,
"the Order should be made well before … so that candidates are aware of the Assembly's precise range of functions".
Like the noble Lord, Lord Stanley, I have examined the second draft order. It comprises a wonderful list but it does not impart information. If one is seeking information from it, it may as well be written in Cyrillic characters, as far as I am concerned. However, I am not a lawyer familiar with these things. Some of the transferred Bills have information attached to them but many of them are simply listed.
I then turned to the guide which one would expect to provide information. As regards local government, the area in which I am particularly interested, I found a list of 38 Bills. The noble Lord, Lord Stanley of Alderley, pointed out that this Bill may be added to or subtracted from. I understand that, as negotiations are being carried out and this matter must still be subject to review. However, of the 38 Bills listed only 13 have schedules. One might think that the schedules would provide information. This reveals the core of what I regard as a fundamental problem. I studied the Caldey Island Act 1990. I assume that the natives of Caldey Island are probably familiar with it, but people standing for the assembly of Wales are less likely to be so. The order states that the function is to be exercised concurrently with the Secretary of State. That is fine. The information imparted in the guide in Section 4(3) states,
"The power of the Secretary of State by order to make transitional and supplemental provisions with regard to Caldey in consequence of the Act".
As a layman I am no further forward, except that as a privileged Member of this Chamber I can go to the Library and obtain a copy of the Caldey Act and find out precisely what is in it. However, we should consider the poor man in the west of Wales who is trying to find out what his functions are. He does not share my privilege. He undoubtedly can go to a library somewhere if he is prepared to travel and he may well get access to the document. There is a real difficulty here. We must bear in mind that Clause 22 is the heart of this Bill. It concerns the transfer of functions. The functions are listed and specified. However, they should be listed and specified in such a way that a layman—I count myself a layman—can understand clearly the functions of a member of the assembly. The purpose of my amendment is to get those functions out into the open in good time so that the public may be aware of them in detail.
Lord Elis-Thomas: I am in a little difficulty as regards the speech of the noble Lord, Lord Dixon-Smith. I have recently been selected as a candidate for the national assembly. I am proud of that and I thank the constituency party of the Party of Wales, Meirionnydd Nant Conwy, for the honour of selecting me to seek election to an elected office. I say that by way of declaring what I hope is a prospective interest. I speak in support of Clause 2 as it stands. However, I must indicate strongly my objection to the tone of those who have spoken so far. With all due respect—as we say in
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this place—to the Official Opposition, you cannot have it both ways. You cannot on the one hand say that you are in favour of a partnership within the Union but on the other hand threaten reserve powers. Either this is a responsible measure of devolution or it is not. It is obvious to me that the noble Lord, Lord Roberts of Conwy, and others have trawled through the late lamented Act of 1978 which was replete with override powers. There are no such powers in this Bill as it stands.
I agree with the noble Lord, Lord Dixon-Smith, that Clause 22 is the heart of the Bill. But there is nothing new here: all it does is place on the face of a Bill the process of transfer of powers by Her Majesty through Order in Council. The Welsh Office—that great institution of state which we now all love and which the noble Lord, Lord Crickhowell, will no doubt soon extol as being somehow preferable to further transfers to the Welsh assembly—has been created by this very process. There is nothing mysterious about further transfers that may in time emerge. As I made clear in this Chamber at the beginning of our debates on this Bill, I am not in favour of further transfer of legislative power in the Bill. There are arguments for further transfer of executive functions, and those will emerge when we discuss later amendments. The heart of Clause 22—the process of transfer—is well known to this Chamber.
As regards the notion of the assembly having a veto, I say in all generosity to the noble Lord, Lord Stanley of Alderley, that that is not the kind of language with which we should grace our devolution debates. We are not in the business of talking of vetoes, either as regards this Parliament at Westminster or the parliament at Holyrood or the national assembly in Cardiff Bay. We should talk of partnerships. We should not talk of threats of imminent collapse and the withdrawal of powers. We should not talk of Westminster drawing back powers, nor should we talk of Cardiff refusing to take responsibility. I refer again to the tone of the noble Lord, Lord Stanley, who suggested that those of us who seek election to the Welsh assembly might somehow shirk our responsibilities either towards the people in Wales who would elect us or towards this Chamber as a partner assembly within the Union. That is not the way we think of the arrangements that we seek between the peoples and nations of these islands, to coin a phrase so beloved of my noble friend Lord Molyneaux. What we are discussing is how we progress the devolutionary process by agreement, not by threats of imminent collapse or refusal of responsibility.
That brings me to the specific amendment on agriculture. As someone who has lived the whole of his life in rural Wales, I have great difficulty with the notion that agriculture, which is at the very heart of the economy of rural Wales, should not be a matter for which the assembly should have care and responsibility. It is not a matter of coming out of the CAP. No one can come out of the CAP these days, whether in western Europe, central Europe or even eastern Europe. We are searching for ways in which we can work together within that framework and the overall WTO frameworks. But surely there are ways in which an assembly for Wales, having care for the whole rural

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economy, can improve on the agri-environmental policies that have been pursued by successive governments, and recently in particular by my right honourable friend Ron Davies, the Secretary of State. The noble Lord, Lord Stanley, and his colleagues moving the amendments relating to agriculture and rural matters must surely realise that in the recent farming crisis the one person who has spoken up for Wales and Welsh agriculture is Mr. Ron Davis, regardless of the failure of Dr. Jack Cunningham to speak for UK agriculture. Therefore, to suggest that somehow agriculture should be taken out of this issue and the list of subjects transferred seems to me to fail the agricultural lobby in Wales—who after all need the support of the whole Welsh electorate and the agri-environmental measures which we shall seek to amend and, it is to be hoped, increase in the assembly. Therefore I speak against the amendments and strongly in favour of Clause 22 as it stands.
3.45 p.m.
Lord Crickhowell: I have known the noble Lord, Lord Elis-Thomas, long enough to know that it would be very foolish to question his integrity or assiduity, or the determination with which he will pursue his duties in the assembly. Indeed, it is not my intention to question the integrity of any member of the assembly in any way or to extol the virtues of the Welsh Office. I merely wish to draw attention to what we are doing in this Parliament at this time.
Like my noble friend Lord Dixon-Smith, I am worried and puzzled. My noble friend referred to Caldey Island. As the former Member for Pembroke, I ought to have been immediately able to answer the question he raised on that particular Act. As I expect he knows, almost all the inhabitants of the island are monks. I suspect that the clause to which he refers has something to do with the electoral procedures on Caldey Island. There are problems in conducting elections on an island which cannot always be reached during a campaign or on election day.
The point of my remarks is to draw attention to what this Chamber is being asked to do today. Looking round, I am not sure that every Member present has examined the transfer order or the notes kindly provided by the Government to explain it. My noble friend on the Front Bench thanked the Government for making the notes available, and I believe he described them as helpful. I am sure that was the Government's intention; however, they are the most unhelpful set of notes I have ever read in all my time in Parliament. I do not criticise the civil servants who worked hard to draw them up. It may be my stupidity that means I find it hard to interpret them. The notes tell us that they are the result of a trawl through over 300 Acts of Parliament: one goes back to 1841. A long list is provided of the Acts to which reference will be made in the order.
One then turns to the further notes to see whether one immediately gets a clear view of what it is that we are doing in relation to Clause 22. I had some involvement in the passage of the Water Resources Act 1991.
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I discover that there are nine pages identifying the powers, and the clauses containing them, that are to be transferred, and those powers that are not.
Most of us have difficulty in passing legislation. We are often confronted with lengthy Bills and do not always find it as easy as do the parliamentary draftsmen to interpret the exact meaning of each clause. However, we usually have the opportunity of turning through a Bill to get a pretty clear idea of its intentions clause by clause. If we are not enlightened by our own reading, the detailed debates in this House will probably throw some further light on the matter. That is the object of a Committee stage. In relation to this Bill, we have to turn to this very long list. Then, in order to discover what it is that we are doing, we have to look at the notes which identify the clauses in the long list of Bills. Presumably, if we then want to know exactly what we are doing, we have to go to the Library and take out the volumes containing the Acts. If we all did that, and brought them into the Chamber, we might bring proceedings to an early halt.
There is a difficulty here. We are being asked to pass a Bill—the noble Lord, Lord Elis-Thomas is absolutely right; Clause 22 is the heart of the Bill—which transfers an enormous range of powers, and yet we are to have the greatest possible difficulty in understanding what we are doing. There is to be an order in due course. I believe that my noble friend said that we shall be able to debate it for an hour and a half—the result of a trawl through more than 300 Bills!
The reality is that we are being asked to pass this legislation largely on trust. We have to assume that the Government have got it right. We have to assume that the civil servants in my former department have gone through the right Acts, extracted the right powers, and included them in the order, and that everything that is being done is being done appropriately.
It is true that under earlier legislation powers were transferred to the Welsh Office—although it has to be said not quite on this scale. The process was spread over a number of years. I had some responsibility for the transfer of powers relating to local government—for example, grant-giving and education powers were transferred step by step in different pieces of legislation. It was possible to consider step by step what was being done in the case of the Welsh Office.
I do not have a solution to the problem that confronts us. Like my noble friends who spoke from the Benches behind me, I am simply confused as to exactly what it is we are doing; and I think it right that this place should understand what it is being asked to do. We should not be misled into believing that all is clarity, and that we as a legislative assembly are clearly in command of the actions that we are taking. I do not believe that to be the case. We are having to take on trust the actions of the Government and those who have done the trawl, and hope that they get it right.
Lord Thomas of Gresford: I am somewhat puzzled by the contribution from the noble Lord, Lord Crickhowell. We on these Benches have never had any difficulty in understanding what was meant by

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devolution and that there would be the transfer of detailed powers, which have over the years been transferred to the Welsh Office and the Secretary of State for Wales piece by piece and by a considered method. We commend those who have produced the draft transfer order for the assiduity with which they have approached their task and the clarity with which they have expressed their proposals. We have until September to consider the first draft and we shall then have an opportunity to consider the matter again. As I understand it, the draft order will not finally come before this House and another place until next year. We thus have a great deal of time to consider and discuss the detailed proposals which are now being put forward.
I wish to draw the attention of those who have put forward the amendments to the fact that the proposals for the transfer of functions are clearly subject to the approval of this House and the other place. Under Clause 22(2), the draft of the first Order in Council has to be placed before each House of Parliament. The subsection does not spell out what functions are to be handed over but says that the order will,
"transfer … such functions … as the Secretary of State considers appropriate".
As for the future, Her Majesty may—it is a discretionary power—by order in council,
"provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales".
Under subsection (4)(a), any future order of that nature will be placed before both Houses of Parliament and approved by a resolution of each House.
I see nothing wrong with the parliamentary scrutiny and the timetable for consideration of these detailed proposals. I emphasise again that, although some 350-odd statutes from the past have been looked at in the draft transfer order, they had already been looked at when the functions were handed over to the Welsh Office by way of administrative devolution.
It seems to me that the purpose of some of the amendments is to snatch back functions from the new Welsh assembly without the consent of that assembly. The noble Lord, Lord Stanley, said that subsection (4)(b) gives the assembly the right of veto over the actions of Westminster in snatching back powers from Wales. I should like to put it a different way.
Lord Simon of Glaisdale: Before the noble Lord continues, I do not believe that the noble Lord, Lord Stanley, said quite that. What he said was important. He said that any attempt to take back powers would be disputed in the assembly. That is a fact we must bear in mind.
Lord Thomas of Gresford: I fully understand that, and I am grateful to the noble and learned Lord, Lord Simon, for his intervention. I am saying that, rather than the assembly exercising a right of veto, under Clause 22(4)(b) it has a right to be consulted if Westminster seeks to take back powers and functions already granted to that assembly. Is it proposed that the Welsh assembly should not be able to debate the removal from it of functions granted to it by Parliament?
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Is it to be assumed that the assembly will have no say in the matter; that it will not have the opportunity to consent to it; and that by some arbitrary act its functions can be diminished? Surely that could never be acceptable to the elected representatives of the people of Wales.
Lord Stanley of Alderley: Will the noble Lord give way? He has raised a very important point, on which I should like clarification. As I read the clause, if further powers are granted to the Welsh assembly, or are to be taken away from it, that assembly has a right to be consulted, but it also has a right of veto over proposals to take powers away. It would help me enormously if the Minister could clarify that point when he responds.
Lord Thomas of Gresford: I am grateful to the noble Lord. As I understand the difference between his amendment and that put forward by the Conservative Front Bench, the latter provides that there would be no right for the Welsh assembly to be consulted, whereas the noble Lord, Lord Stanley, being a good Welshman, has at least suggested that someone should ask the Welsh assembly if it has a view to express. I see that the noble Earl, Lord Courtown, agrees with that. There is a vital distinction between the two amendments.
When we come to Amendment No. 67 proposed by the Conservative Front Bench, matters are even worse. If the proposed new clause were to be added to the Bill after Clause 22, it would be entirely within the discretion of the Secretary of State to snatch back the powers and functions of the assembly at his own whim. The proposed new clause states:
"If the Secretary of State is of opinion that the Assembly has failed to discharge any of the functions transferred to the Assembly in a manner that the Secretary of State considers adequate, he shall certify the facts and matters he relies upon and serve notice thereof upon the Assembly".
Then, if he—no one else—is not satisfied with the response and remains satisfied that the facts and matters are detrimental to good public administration in Wales,
"the Secretary of State shall by statutory instrument transfer the relevant function or functions of the Assembly to himself to such extent and for such period as may be therein specified".
That amendment would give complete control to the Secretary of State, at his own whim, at his own political motivation—perhaps "whim" is the wrong word—because he takes a different political view from that of the Welsh assembly, to snatch back those powers and functions without consultation.
If a Welsh assembly is to have any meaning, if devolution, which is being granted by a bold and courageous step by the Government, is to take place, let the assembly be strong and retain power and control over its own functions and powers. These amendments should go no further.
Lord Rees: Before the noble Lord sits down, does he not recognise that the Secretary of State is subject to review by both this House and the other place? The idea that he personally, on a whim, can snatch back powers seems to me to be very wide of the mark. Has the noble

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Lord given any thought to that possibility? If so, perhaps he will share his views on that matter with the Committee.
Lord Thomas of Gresford: I am grateful to the noble Lord, Lord Rees, for what he said. I did rather withdraw from the word "whim", because perhaps it does not assist my argument. It is better to consider a more realistic situation in which, with a government at Westminster of a different political colour from that of the Welsh assembly, the Secretary of State, with the support of the Cabinet and of the majority in the Houses of Parliament, could operate in such a way as to nullify the powers of the assembly. That would be against the spirit of the Bill.
4 p.m.
Lord Simon of Glaisdale: On the last occasion your Lordships considered the Bill, I ventured to suggest that it had no traditional electoral legitimacy. After the Armed Forces and expatriates had been disfranchised, there was a very narrow majority in favour, in spite of all the resources of the Government being put into the campaign. However, although the Bill has no electoral legitimacy, it has a different, unusual—I think, unique—and very interesting legitimacy. The vote having taken place, all parties, including those who took a negative view and those who thought the proposals did not go far enough, seem to agree that in the circumstances the Bill should be made to work.
That demands an unusual attitude both from the Government and from Members of the Committee. From the Government it demands a much more reflective and flexible response than anything we have had up to now. From Parliament it demands the good will to make this scheme work, bearing in mind—if I may repeat—the very wise pronouncement of Clement Attlee. It was a statement with a profound constitutional sense that democracy is not just government by the majority but government by a majority with deference to the interests of the minority.
The second important matter in the Committee's approach is to eliminate so far as possible areas of conflict. The first thing is to make the proposals for devolution as clear-cut as possible and as indisputable as possible in a forensic sense. The second is to eliminate areas of conflict such as an attempt to take back powers which have once been transferred. Of course, things may go wrong. But if there is an attempt to draw back powers which have once been transferred, things are bound to go wrong. The noble Lord, Lord Stanley of Alderley, was quite right that, if there is any attempt to withdraw powers once granted to the Welsh assembly, that is bound to be hotly resisted by the assembly. It would be irresponsible if we allowed such a situation to be permissible.
It seems to me therefore that, although the noble Lord, Lord Roberts, moved the amendment in his habitual clear, cogent and considerate way, on the whole it runs counter to the attitude that we ought now, in these unusual circumstances, to adopt towards the Bill. I have not yet seen the draft order and perhaps anything I have
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to say about Clause 22 is better left to the Motion that the clause should stand part of the Bill. In the meantime, I venture to beg the Committee to approach this matter not in any sharply polemical way but in the flexible way of good will towards the assembly and the people who will be governed by it.
4 p.m.
Lord Mackay of Ardbrecknish: Perhaps at this stage I may say a few words about Amendment No. 67, as my noble friend Lord Roberts of Conwy suggested I would. At the risk of annoying the noble Lord, Lord Thomas of Gresford, this is not a new clause put forward in any spirit of wanting to grab back some of the powers that have been given to the Welsh assembly; it is a recognition that there will be a continuing relationship between the Government of the United Kingdom and the Welsh assembly. Issues will arise when the Government of the United Kingdom, for wider reasons, will have some responsibility for the decisions made by the assembly. For example, those wider reasons may be to do with our membership of the European Union; they may be to do with matters relating to GATT or other worldwide obligations into which the United Kingdom has entered but into which the Welsh assembly will not have entered because it will not have responsibility for those issues.
In those circumstances, or indeed some others—perhaps some of the difficult cross-border issues that take up so many pages on the Marshalled List today—
Lord Elis-Thomas: Perhaps the noble Lord will allow me to intervene to comment on a remark he made earlier. Surely the assembly will have a shared responsibility in any United Kingdom matters which are partly devolved, in that the assembly is covered by the override power—the only one in the Bill, as far as I understand it—ensuring that the assembly does nothing to contravene UK international obligations. The assembly therefore will be involved in GATT and the WTO, but it will not be contravening what the UK may be doing in those areas.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord. Indeed, the assembly will be covered by those things, but it will not be involved. in the negotiations or the conclusions. However, I agree with the noble Lord that it will be obliged to follow them.
The problems will arise if the assembly does something or does not do something. That will clearly be difficult for the United Kingdom Government. What powers do the Government or the Secretary of State have? Amendment No. 67 suggests, in a modest manner, a way round the problem. The first part gives the Secretary of State powers to notify the assembly if he considers that it is failing in the discharge of any of the functions delegated to it. One hopes that at that point the assembly will consider the position and take steps to satisfy the Secretary of State that it is doing its job properly by discharging the functions or that it is taking proper cognisance of whatever external issues are being brought to bear on the matter in front of it.

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The second part of the amendment deals with a situation where, for whatever reason, the assembly decides that it is not going to take any cognisance of the centre. I know that the noble Lords, Lord Thomas of Gresford and Lord Elis-Thomas, think that that is my fevered imagination. But government's experience—of both parties—with local government suggests that occasionally subsidiary governments decide to dig in their heels and see what happens. I appreciate that the Welsh assembly may be different from any other body that we have in this country in local government, but I am not entirely convinced. I have watched local government occasionally decide to dig in its heels and challenge central government: "If you want it that way, come and do whatever you need to do. We are not going to play ball".
The second part of the amendment therefore gives the Secretary of State some powers to deal with the situation if he thinks it necessary. If he goes way outside the spirit of the words in the new clause, I have little doubt that the noble Lords, Lord Thomas of Gresford and Lord Williams of Mostyn, and their colleagues in the legal profession will get stuck in, and I do not believe that the Secretary of State would last very long in court if he were clearly going beyond the words on the Marshalled List.
Let us presume that all is well from the legal point of view. In order to attempt to ensure that the Secretary of State does not have dictatorial powers, we have ensured that he can exercise this kind of override position only subject to the democratic control of this Chamber or another place. I accept that it is possible that there may be a huge political divide between the Houses of Parliament in London and the assembly in Cardiff; that will inevitably happen at some stage. I should like to think that neither will take the view that they want to break the whole thing apart by taking a purely political view of any issue.
I should like to think also that the words in the new clause are constructed in such a way that, if a government at Westminster were taking a view which was entirely political and clearly had not much relevance to the wording in the new clause, again the legal profession would be called in to play and the Government would suffer a bloody nose in the courts for exceeding those powers—a subject of which I have some experience in my previous existence, so I know that judges can do that kind of thing.
I hope that I have explained at least a little to the Committee's satisfaction. I am not trying to give the Secretary of State huge or dictatorial powers but measured powers whereby he can point out to the assembly that it is not doing things properly or is making difficulties for itself. That could lead to discussion and the possibility of a satisfactory outcome. Failing that, the Secretary of State could proceed not by diktat but by statutory instrument which would be subject to the democratic control of the House. This is
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sensible machinery to put into the legislation. I would hope that it never had to be used but it would be in place against the day that it might.
Lord Rees: Every Member of the Committee taking part in the debate approaches the Bill with the utmost good will, benevolence and optimism with regard to the assembly, its functions and future. That was the tenor on Second Reading. Whatever reservations we may have had at an earlier stage we are now faced with the practical prospect of translating the thinking behind the Bill into sensible, statesmanlike measures. Against that background we are obliged and bound to consider in some detail what powers are being transferred to the assembly, how those powers can be modified, increased or diminished in the future, and what is the ultimate control and where does it lie.
I shall not take up the Committee's time on the details of the powers at this stage. There will be many amendments allowing for that. Nor will I consider how those powers can be added to or subtracted from. I want to reflect on the responsibilities of the Westminster Parliament in relation to the assembly. We cannot just wash our hands of the assembly once the Bill is passed into law, if it is passed into law without substantial amendment. We retain constitutionally the ultimate responsibility for the running of the United Kingdom. I shall not deal with delicate matters in relation to Scotland; we shall come to those in due course.
Implicit in the remarks of the noble Lords, Lord Thomas of Gresford and Lord Elis-Thomas, was that any thought of Westminster needing to control or reflect on the performance or powers of the assembly would be regarded as an affront to the people of Wales or those who might be elected to the assembly. That is absolute nonsense. I come from a part of Wales which reflected its reservations in the referendum in spite of the rather unattractive and shabby way the referendum was put. We indicated our reservations. We were perfectly entitled to do so. We are entitled to reflect those reservations today and in the debate we will be having in weeks to come. We are entitled to consider them.
Supposing things do go wrong? Supposing there is friction between the assembly and Westminster? How are these matters to be resolved? Although we had not seen the Bill at the referendum stage, the way its conception was put to the people of Wales at the referendum was that the long stop after all is Westminster. If it is said that any power handed to the assembly is gone for good, no matter how the assembly performs, then one has to face the fact that a deliberative chamber can reach some very odd conclusions which may not be very practical. Are we to say that that is a matter for the assembly, that we have given it powers and that we have no further responsibility? I do not take that view. We have, and will have, a continuing responsibility.
How that power is exercised and how the assembly exercises its powers will be a matter for deep reflection both here and in Cardiff. We have to face the possibilities in a realistic and practical way. We must not draw conclusions that we do not have confidence in the people of Wales and that we are going to keep them

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dancing at the end of a string. History, alas, is all too full of examples where people set out with the best intentions and those intentions are not fulfilled.
I hope that we can have a measured and careful debate on these questions, particularly on the relationship of the assembly with Parliament in Westminster. On that basis Amendment No. 67, which my noble friend commended, deserves our careful and sympathetic consideration.
4.15 p.m.
Lord Hooson: I want to make the briefest of interventions. Obviously devolution is a process and much depends on the civilised relationship between Parliament and the assembly. What I find objectionable in most of the amendments to be put forward is that they are sowing the seeds of dissension into the Bill. It is the attitude that says we want an overall control and right to withdraw powers and so on. That is quite unnecessary. If there were to be a real clash of principle between the assembly and Parliament—after all, this is a major devolution—this Parliament is sovereign. If it came to a question of a clash between the assembly and Parliament, then all the power is with Parliament. Why therefore is it necessary to sow the seeds of dissension into the Bill?
Lord Stanley of Alderley: I agree entirely with the principle of what the noble Lord is saying. However, the noble Lord says that if there is dissension sovereignty rests at Westminster. I do not see where that is written into the Bill. I think the noble Lord, Lord Elis-Thomas, misinterpreted the tone of my amendment. I am saying that if things go wrong I want exactly the same as the noble Lord.
Lord Hooson: The noble Lord, Lord Stanley, protested many times during his speech that he was not a politician. I thought he was giving a first-class impression of one. He knows I have very warm regard for him. In a relationship such as we are developing between the Welsh assembly and Parliament, you cannot have everything set in stone. You must not anticipate every little problem and give jagged edges to every solution. It will depend on a civilised relationship.
The citizens of Wales realise there are many advantages of being part of the Union; people in England and Scotland realise there are great advantages in giving the people of Wales a good deal of control over their own affairs. The relationship will be a developing, growing one.
Much will depend on the concordats which will be set out. They will be a means of setting in motion what will become constitutional conventions. No doubt they will be amended along the way, but they will become constitutional conventions in the relationship between Parliament and the assembly. That is the way to proceed, not on a basis of suspicion and spite.
Lord Prys-Davies: I agree that the relationship will surely develop over time. It must be clear from the
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outset that the Welsh assembly is not an agent or a trustee of the Secretary of State. It is not accountable to the Secretary of State; it is accountable to the Welsh people. Amendment No. 67 misses the point. Even if the Secretary of State takes the view that the assembly is not performing a function in a manner which is acceptable to him, that is a political decision. If that be the view of the assembly members, so be it. Of course, if the assembly acted outwith its powers, that is a matter to be referred to the judicial committee. From the outset we must be clear that the assembly is not an agent or a trustee of the Secretary of State.
Lord Simon of Glaisdale: As I did not speak to this amendment, not having heard the noble Lord, Lord Mackay, say what had to be said, perhaps I may add this. The noble Lord, Lord Rees, is quite right. There is an overriding responsibility on the British Government in the United Kingdom and on Parliament as to the affairs in any part of the United Kingdom. The amendment envisages a major breakdown, a deplorable breakdown, in administration by the assembly. That is a major matter and it can be corrected. The way to correct it is obviously by primary legislation. That is always within the power of Parliament.
However, that is not what the amendment proposes. It proposes that this should be done by secondary legislation on the say so of the Secretary of State, subject of course, as the noble Lord, Lord Mackay, emphasised, to parliamentary approval. But it must be wrong that such a momentous constitutional step should be carried out by secondary legislation.
My own view is that the more the Secretary of State keeps his nose out of Welsh affairs, the better it will be both for him and for Wales. I have the gravest doubt whether the proposal that he may intervene in the legislative affairs of the assembly is justifiable. But certainly to give him this power, to write it into an Act of Parliament, is both to insult the forthcoming assembly and to create the worst kind of atmosphere, when, as I think all your Lordships hold, the assembly should be set up in the best kind of atmosphere.
The Earl of Balfour: I should like to comment on Amendment No. 53. Clause 22 commences with the words:
"Her Majesty may by Order in Council … provide for the transfer to"—
but it does not allow for the transfer from—
"the Assembly of any function so far as exercisable by a Minister of the Crown".
Circumstances do change from time to time. I feel that the Government need to protect themselves a little where there are changes so that a Minister can then change his mind over anything in particular.
Lord Williams of Mostyn: A good deal of what underpins the discussion on these linked amendments depends on what kind of creature it is wished should inhabit the new assembly when the committee of the noble Lord, Lord Callaghan, has decided on its architectural design. I recognise entirely, and recognise with gratitude, the fact that in all corners

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of the Chamber—virtually without exception—the overwhelming majority has come to the generous conclusion that because there was a majority in the referendum, though modest, all efforts should be put to making the Bill work. But that means that the philosophy underlying the Bill and how we deal with matters—whether we start with an emotional approach which is suspicious or whether we look on it as a confident opportunity for a brand new assembly and a new constitutional device—is very important.
The noble and learned Lord, Lord Simon of Glaisdale, made two points. I agreed with one of them and disagreed with the other. I start with the area of disagreement. It simply is not right to say that the Government have been inflexible. I said at Second Reading on a number of occasions—it was repeated by the Solicitor-General on the same occasion—that any suggestion which improved the Bill would be carefully considered. We have demonstrated that. It simply is not factually correct to say that we have been rigid. Indeed, the whole tone and tenor of what was said by the noble Lord, Lord Roberts of Conwy, demonstrates that. He was a keen and influential participant in the discussions about whether we should have a cabinet system or a committee system. Having reflected on the arguments that he and his colleagues put forward, we changed our mind. That is not a sign of inflexibility.
Suggestions were put forward, including some from the party opposite, that we should carefully consider having an ombudsman for the assembly. We considered that and were flexible on it. So it simply is not right to say that we have been rigid.
Lord Simon of Glaisdale: The Minister will remember that he used the same words on the amendment to allow the Armed Forces to have a say in a matter that affected them. He said, "It would be considered carefully" and "It would be considered sympathetically". The outcome was that they were disenfranchised.
4.30 p.m.
Lord Williams of Mostyn: They were not disenfranchised. They were held to the registered franchise which they had formerly had. That is quite different. In fact, the noble Lord, Lord Campbell of Alloway, among others, put forward the proposition which was supported by a number of your Lordships. I went away and came back with, I hope, a reasoned response. We were not able to accept that amendment. However, we accepted the thrust of the argument, which was, "Do you have a cabinet system or do you have a committee system?" That is extremely important and I would say, I hope without stirring up any fury, a good deal more significant than the extent of the franchise that we had and whether or not an Italian waiter might or might not be able to vote when the daughter of the noble Lord, Lord Mackay of Ardbrecknish, could not.
Where I agree with the noble and learned Lord, Lord Simon of Glaisdale—I hope therefore that he will not immediately snatch away his agreement from me—is that if one is to have a change to the constitutional arrangements set out in the Bill then, as the noble Lord,
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Lord Hooson, said, that would be a matter ultimately for the residual sovereignty of the Westminster Parliament. But if powers are to be taken away—I do not use the words "snatched back" for fear of being accused of being intemperate in my language—if powers are to be recovered, then, constitutionally, it should be done in the way described by the noble and learned Lord, Lord Simon of Glaisdale, and by the noble Lord, Lord Hooson.
It is right that Clause 22 is the heart of the Bill. There is no difference between us on that. I do not detect any hostility to the concept of the assembly in anything that has been said in various degrees of reproach by noble Lords this afternoon. I welcome what was said by the noble Lord, Lord Rees, but it is our duty to get the best possible outcome, the basic frame, as it were, now having been the subject of the positive verdict in the referendum. Therefore, all these amendments—they are by no means internally consistent, if I might gently point that out—deal with the mechanism by which the assembly is to gain the majority of its functions. It is the heart of the constitutional settlement.
A number of noble Lords have made interesting comments. Perhaps I may apologise in advance for being rather longer in my response than I would normally have been. Clause 21 states that the assembly is to have the functions transferred to it or made exercisable by it by virtue of this Act. That is a clear reference to the transfer of ministerial functions under Clause 22. Clause 21 also says perfectly plainly that the assembly is to have the functions,
"conferred or imposed on the Assembly by or under this Act or any other Act".
The noble Lord, Lord Hooson, is quite right in that this is a process and not an event: were it an event it would be foolish to embark on it.
Initially, the vast majority of the functions are dealt with by order under Clause 22. But from this autumn onwards other Bills brought forward by your Lordships may confer appropriate functions directly on the assembly. This Bill gives a number of functions directly to the assembly—that is to say, the powers to reform public bodies in Wales in Clauses 28 and 29. I am bound to say that I have not met any opposition to that power. There are powers to support culture in Clause 33 and to hold polls under Clause 37.
Amendments Nos. 50 and 51 are inappropriate because they do not recognise that this Bill itself confers functions on the assembly and we cannot accept them. We cannot accept Amendment No. 52 or its sisters, Amendments Nos. 53, 54, 56 and 65. Amendment No. 52 means that the transfer of functions will lack precision. If the intent of Amendment No. 52 is to make sure that your Lordships' House and the wider public know what the transfer functions are to be, it will fail. The transfer order, which we published on 14th May in second draft, will spell out precisely the functions under which Acts are transferred to the assembly.
We believe that we can give clarity. I agree that it is a somewhat laborious clarity, but that is the nature of legislation. I remind the Committee, as has been said earlier, that quite a lot of functions have already been

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transferred to the Welsh Office over the years. Apart from the occasional political anorak in Wales, I doubt whether anyone has immediately to hand, mind and heart precisely what all the Welsh Office functions are. That is the purpose of the draft transfer order.
We believe that, with the best will in the world—I impugn no one's motives at all on these occasions—what will happen if any of these amendments are accepted by the Committee, is to bring about confusion and dispute. The point was made about Caldey Island and what it meant. It is equally true, as always, that the noble Lord, Lord Crickhowell, had the answer readily to hand. I believe that he must be unique in your Lordships' House. I make my own public confession that I did not have the answer immediately to hand. However, I had others to assist me, but the noble Lord did not. As is well known to every Welsh schoolboy, the Caldey Island Act gives the Welsh Secretary of State powers in respect of elections, coroners' courts—rarely held, I imagine, in that peaceful island—and the district health authorities on that island, which clearly ought to pass to the assembly.
The noble Lord, Lord Crickhowell, is absolutely right. He said that we have to take the Bill on trust. To an extent that is true, but I hope that we are playing our reciprocal part in that process. We are publishing drafts as we go along as soon as we have them. I am grateful for what the noble Lord, Lord Roberts, has said. I have been as open as I possibly can with him and all Members of the Committee and at as early a stage as possible. I recognise that it is difficult to labour through these drafts which are extremely lengthy. We shall be consulting publicly on a complete draft before making the order and that order will require the resolution of both Houses. So there will be an examination of it by the Joint Scrutiny Committee in the usual way.
Amendment No. 52 purports to transfer all functions to the Secretary of State in the fields specified in Schedule 2. But that is not what we propose. We said in the White Paper that virtually all the functions would be transferred to the assembly, but some would not. I give as an illustration the Secretary of State's function in advising Her Majesty on certain appointments that she makes. That is not intended to be transferred and that is deliberate. That is why the draft transfer order shows that we do not intend to transfer to the assembly functions to do, for instance, with the appointment of the chief inspector of schools in Wales under the School Inspections Act 1996 or the local government commissioner for Wales under the Local Government Act 1974. We have been selective and, I hope, prudently so.
We are also considering transferring powers to the assembly of some functions which are not exercised by the Secretary of State for Wales. Some examples include joint powers where the legislation requires that he acts jointly with his Cabinet colleagues. We aim to remove the requirement for joint action wherever practicable so that the assembly will be free to exercise such powers on its own in and for Wales. Where we believe that to be
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the right course the transfer order will need to transfer to the assembly not only the Secretary of State's functions, but also some of those of his colleagues.
A question was raised about international obligations. I believe that the noble Lord, Lord Elis-Thomas, is right because in Clauses 108 to 110 we see there the mechanism for ensuring that whatever the assembly does in the international and EU context has to be compliant.
Perhaps I may spend a moment or two on the amendment which has appealed to the Committee perhaps more than some and that is the amendment in the name of the noble Lord, Lord Roberts of Conwy, which was moved by the noble Lord, Lord Mackay of Ardbrecknish; namely, Amendment No. 67. I had thought that the long tradition of Stalinist state centrist control had gone from the Conservative Party, but I was wrong. It really is an extraordinary proposition that the noble Lord has put forward. It may well be tongue in cheek, otherwise known as probing, but what he actually said was that if one has subordinate assemblies which do something which the Secretary of State is not satisfied with, the Secretary of State can have that draconian override.
It is quite interesting to look at the phraseology. It is not, "If the assembly behaves unlawfully"—as the noble and learned Lord, Lord Simon of Glaisdale, said, the judicial mechanism for putting that right on a vires basis is there—but what is said here, as a result of due deliberation, is this. If the assembly, in the Secretary of State's opinion,
"failed to discharge any of the functions transferred to the Assembly in a manner that the Secretary of State considers adequate."
he must serve notice on the assembly. Then, if he is not satisfied with the response, he may himself transfer those powers,
"to such extent and for such period as may be therein specified".
That is the apotheosis of the nanny state—asking for trouble and likely to get it.
4.30 p.m.
Lord Mackay of Ardbrecknish: I must be helpful to the noble Lord and stop him walking into too much trouble of his own making. He drew our attention to Clauses 108 to 110 about the inter-relationship between the assembly and Europe. Perhaps I may read out and remind the noble Lord of Clause 110(3) which states,
"If the Secretary of State considers that any subordinate legislation made, or which could be revoked, by the Assembly is incompatible with any international obligations, he may by order revoke the legislation".
I do not believe that the noble Lord should go too far in accusing me of the nanny state.
Lord Williams of Mostyn: The noble Lord makes my point abundantly and in spades. We are dealing with two categories of activity. Perhaps I may just assist the noble Lord so that he does not stumble further into a trap of his own making and, of course, in a spirit of concordance. On his example—I am sure he will happily withdraw it in a moment or two when I have helpfully explained it to him—we are talking about legal

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obligations in the international field. What we are speaking about when we scrutinise with a beady eye his Amendment No. 67, is that if the Secretary of State considers that in the exercise of any function the performance of the assembly is inadequate, then he may take it back to himself. I believe that Imperial Caesar would have thought that that was a bit rich!
Lord Rees: I had no hand in the drawing of this amendment so I look at it with a relatively detached eye. Does the Minister concede that this will be the subject of debate and ratification by Parliament at Westminster? Since the Minister is so concerned about the Caesarian state, is he seriously suggesting, as a member of the current Administration, that if it was the opinion of the Secretary of State and, after debate, of the Parliament at Westminster, that,
"matters which give rise to the same are likely to persist to the material detriment of good public administration in Wales without intervention",
the government of the day could wash their hands of what was happening across Offa's Dyke?
Lord Williams of Mostyn: Both the noble Lord, Lord Rees, and I used to practise at the Bar so I recognise what he has done. He has immediately disavowed any paternity or even responsibility for the amendment under discussion. If the noble Lord wants to table a reasoned amendment of his own, we shall, of course, give it every proper, due and mature consideration—and probably come to the conclusion that we were right all along anyway! However, we would consider an amendment.
What is being proposed is something wholly different. It is not as wholly different as the example given by the noble Lord, Lord Elis-Thomas, but it is a lurker in the middle. The phrase, "Is the noble Lord suggesting?" has been put to me rhetorically. I recognise that from forensic fields with which many of us are familiar because it immediately suggests that if I disagree with the proposition, there must be something seriously wrong with me.
I am referring to the possibility of a total breakdown leading to catastrophic consequences of the sort mentioned by the noble Lord, Lord Hooson. I respectfully repeat what I believe to be constitutionally correct. Indeed, it has been confirmed by the noble and learned Lord, Lord Simon of Glaisdale. Ultimately, sovereignty remains at Westminster. The short question is whether we approach this on the basis of being hopeful and confident, on the reasoned basis of recent history, that the assembly is capable of working—in other words, is the assembly fitted for power by the powers that we give it—or whether we should build in such mechanisms as will allow intervention. I respectfully suggest that that is what is absurdly and wrongly offered in Amendment No. 67. If a catastrophe occurred, we should have to consider this, bearing in mind our ultimate constitutional sovereignty here in Parliament. I continue—
Lord Roberts of Conwy: Perhaps I may point out that in the new schedule on cross-border issues which
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the Minister is proposing, there is a power for the Secretary of State to intervene in certain circumstances. Would the Minister care to comment at this stage on that power of intervention which is to be given to the Secretary of State?
Lord Williams of Mostyn: Most certainly. That is another helpful intervention, indicating that we are dealing with wholly different circumstances. By definition, cross-border matters do not affect the people who voted for the assembly and who will therefore be governed by it. Cross-border matters relate to colleague nations—if I may use that unattractive phrase—in a different context. I am obliged to the noble Lord, but with great respect perhaps I may advise him that he has again abundantly made the point of principle for which I contended earlier.
We have already considered Schedule 2. We have decided that one of the appointments to the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council should be made with the assembly's agreement. It is to receive copies of those other bodies' reports. That is a useful, practical and utilitarian step.
We are not willing to rule out now, for ever, the possibility of future transfers of ministerial functions to the assembly. We have no plans to make further orders, but we contemplate the possibility that further powers might at some stage be appropriately transferred. The Opposition's amendments would prevent such transfers (even of modest additional functions) without fresh primary legislation. Again, I remind the Committee that there have been many transfers of responsibility to the Welsh Office throughout the course of its life. I refer to the transfers of responsibility for training, higher education and the arts. I am happy to say that all of those transfers were initiatives from the party opposite, very often under the stewardship of the noble Lord, Lord Crickhowell. So, there have been incremental increases and, by and large, in principle and very often in practice, they have worked well.
Reference has been made to the observations of the noble and learned Lord the Solicitor-General. We have provided opportunities in Clause 22 for correcting oversights. Of course, we want to do everything we can to avoid them in the first place. However, it may be that an obscure function in a rarely used old statute has been overlooked. We are looking for a stable constitutional settlement on the basis of confidence that there will be continuity.
The noble Lord, Lord Stanley of Alderley, in Amendment No. 66, seeks to provide that functions could be removed from the assembly at the behest of the government of the day. Some noble Lords have hinted that sometimes some governments, when they have large majorities, are careless of the views of others. The noble Lord's amendment provides for exactly that to occur in 20 or 25 years' time, perhaps when there is a difference in political complexion between Cardiff and Westminster.
We believe that Clause 22(4)(b) provides a level of security for the assembly. It is an intended lock. We believe that the noble Lord's amendment would remove

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that lock. In a contribution which far from being from the dark ages came from the enlightenment, the noble Lord, Lord Stanley, asked me specifically whether there was a veto under Clause 22(4)(b). An Order in Council could not take powers away by transfer order without the approval of the assembly. The noble Lord's construction of that provision is correct. It is important to repeat that Parliament could take away functions, but only by primary legislation, as I said earlier. The power to transfer functions by order cannot be used to remove functions unless the assembly agrees. Clause 102 of the Scotland Bill is to the same effect.
We believe—this comes to the principled approach that one seeks to have, whatever it is—that watering down the powers of the assembly would lead to a constant fear of the reimposition of rule from Whitehall by the back door. If anything was well calculated to cause dissatisfaction and disaffection among Welsh people about their continued existence in the Union, that would be a prime candidate.
4.45 p.m.
Lord Elis-Thomas: I am grateful to the Minister for giving way. I warmly endorse his last two sentences. I fail to understand why noble Lords opposite pursue this issue because if anything is calculated to fan the flames of the nationalism (against the revival of which the noble Lord, Lord Roberts of Conwy, continually strives), it is precisely such an override power. The fear of an override power is more likely to generate nationalistic feeling than is anything else.
Lord Williams of Mostyn: I am obliged to the noble Lord for that contribution.
Amendment No. 67 was consequential in the note provided for me, but offered itself so invitingly that I dealt with it out of chronological order.
I have some sympathy with Amendment No. 58 which stands in the name of the noble Lord, Lord Dixon-Smith. He would like the draft order to be laid no later than 16 weeks before the first elections on 6th May next year. I confirm absolutely, as I think that he was inviting me to do, the contents of the Solicitor-General's letter. I repeat that we intend that the order should have been approved by both Houses and made by Her Majesty before nominations for candidates close at the end of March. Of course, I cannot give a cast-iron guarantee because to an extent it depends on the pressure of business which is not entirely in my hands, particularly in your Lordships' House. That may mean that we are able to lay the draft order more or less than 16 weeks before the elections. I hope that the noble Lord will accept that we are happy to aim for his suggested timetable, but that we do not think it appropriate to make it a binding requirement in the legislation. The noble Lord has made his point of principle, but it would be unusual to set that in stone in statute.
Lord Dixon-Smith: I am extremely grateful to the Minister for his response. I express my gratitude to the noble and learned Lord, Lord Falconer of Thoroton,
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for his letter. I have already done so in his absence. The question that I sought to raise on the back of my rather small amendment was whether there would be a plain man's guide to the transfer written in English so that ordinary people could understand it and. perhaps more importantly, written in Welsh so that ordinary Welshmen could understand it. That would be an extremely useful document for candidates in the election and a very useful reference document for everyone. It would avoid having to go through an appalling mish-mash of legal statements and references back to other enactments. A plain man's guide would be very useful.
Lord Williams of Mostyn: I accept the spirit of what the noble Lord said and I am grateful to him. As he said "plain man's guide" I picked up the document in question. I am not sure for how many plain men I could write a guide. Either one prepares something that is so simplistic that it is of little value except on the basis of "mum and apple pie" or one gives the detail so that those who are genuinely interested can make their own researches. However, I shall pay every decent regard to what the noble Lord said. I believe that the answer is likely to be no, for the reason I have given, but I shall certainly consider it. I am grateful for the suggestion.
Amendment No. 59 deals with the question of whether the draft order should contain functions in each of the fields specified in Schedule 2. Subsection (2) does not require that the draft order contains functions in each of the fields in Schedule 2. It requires the draft order to make provision for transferring such functions in each of the fields as the Secretary of State considers appropriate. It is possible, though unlikely, that he may conclude that there should be no functions in the draft order in one of the fields in Schedule 2, so we do not believe that Amendment No. 59 is of benefit.
I have deliberately taken a little while because particular questions have been raised. I believe that some of the questions raised by the noble Lord, Lord Stanley of Alderney, are directed specifically to the next group of amendments. It is probably more convenient if I deal with them at that stage. However, I shall respond generally to his questions about the position in 1978 vis-à-vis the present proposals. The Secretary of State for Wales and the Welsh Office have taken on many more functions since 1978. It is for that reason that the functions in the transfer order are much more extensive than those listed in the 1978 Act. I believe that agricultural responsibilities were transferred to the Welsh Office in the course of 1978.
I hope that my responses are helpful. I have deliberately held back my detailed responses to the questions raised by the amendments in the names of the noble Lords, Lord Stanley of Alderley and Lord Willoughby de Broke. It is probably better if I deal with those issues at that time. On the basis of what I have put forward in a spirit of non-controversy I hope that all noble Lords will decide not to pursue their varying and contradictory amendments.
Lord Roberts of Conwy: I am sure that the Committee is grateful to the Minister for his interesting

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response to the debate. It would have been surprising had it not been so. All noble Lords realise that the clauses which transfer functions lie at the very heart of the Bill. As my noble friend Lord Crickhowell said, the transfer of functions is on a massive scale. It would be curious if we did not pause to consider the matter. We are passing functions from the Secretary of State to the assembly under some 300 Acts. We are passing very considerable powers to the assembly.
The noble Lord, Lord Elis-Thomas, referred to partnership. The noble Lord, Lord Hooson, referred to the civilised relationship that should exist between Parliament and the assembly. It is no part of our endeavour to belittle the assembly or to snatch functions properly transferred to it. But we believe that there is a duty incumbent upon Parliament to take care of the partner to whom it is transferring functions. Surely, we would be irresponsible if we did not take some kind of precaution in the event that matters did not go well and functions were not properly exercised by the assembly. Difficulties might occur either for the United Kingdom or for the assembly, as we have seen happen in local government, and we would be unable to take back functions given by this Parliament.
The Minister made much of the fact that Amendment No. 67 conferred an override power on the Secretary of State. However, it was pointed out that that power existed in the field of Community obligations and cross-border issues and functions. If they are not properly carried out, the Secretary of State has an interventionist role.
Lord Elis-Thomas: I do not want to delay the noble Lord but I have difficulty understanding his position. I believe that he is in danger of invalidating those very Conservative candidates who presumably will be standing for election to the assembly. Surely, if they are to be elected they are responsible for the devolved functions and are accountable to the electorate whereas international obligations and cross-border issues are precisely so—cross-border issues to do with bodies who have no say in elections to the assembly.
Lord Roberts of Conwy: I congratulate the noble Lord who is clearly launching into his campaign. As to Conservative candidates for the assembly—I can assure the noble Lord that there will be a contender against him—there is still a duty upon them, as upon us, to ensure that the assembly performs its functions satisfactorily. What we seek to do is to make some provision in the event that difficulties occur.
Earl Russell: I thank the noble Lord for giving way. Is he not failing to make the distinction between "unpopular" and ultra vires? Is it not rather unwise in this Chamber to suggest that assemblies may lose functions if they discharge them in a way that does not satisfy the Secretary of State?
Lord Roberts of Conwy: The Committee has already covered almost all the situations in which there can be malfunction. All that we seek to emphasise here is that the transfer of functions is entirely one way. I would
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have thought that a Parliament which executed a massive transfer of powers of this kind would make some provision in case those powers were not used appropriately. But I am reassured by the fact that it can be done by primary legislation. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for emphasising that point. I give way.
5 p.m.
Lord Islwyn: Is not the term "carrying out its functions satisfactorily" a relative one? There are differences, for instance, in the pattern of voting in Wales compared with England. We have been led to believe that people of the highest calibre will be encouraged to stand for this new assembly. I hope that many of those people of high calibre will be elected. If they are going merely to dance to the tune played at Westminster, they will not be of much calibre at all.
Lord Roberts of Conwy: All sides of the Committee realise that membership of the assembly should be of the highest quality. The general assumption behind this massive transfer of functions by Parliament to the assembly is that it is, as one noble Lord has said, a matter of trust. It is being done on trust. We are seeking to ensure that should there be any malfunction and substantial call for the return of powers to Parliament that should be provided for. It is possible for such a return of functions to take place, because of the continuing power of this Parliament in primary legislation. Bearing that in mind, and with the assurances that we have been given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Clause 21 agreed to.
Clause 22 [Transfer of Ministerial functions]:
[Amendments Nos. 52 to 59 not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 60:
Page 13, line 14, at end insert—
("( ) No draft of an Order in Council laid before each House of Parliament under subsection (2) above shall make provision for transferring to the Assembly functions concerning animal health and welfare.").
The noble Lord said: I shall speak first to Amendments Nos. 60 to 63 and then follow with Amendment No. 64 which is slightly different. This series of amendments tries to clarify the Government's intentions regarding the transfer to the assembly of four areas of function relating to agriculture: animal health and welfare; food safety; health and safety; and pesticides. It is clear from the guide to the draft transfer of functions order published in May, that the Government:
"has not reached final decisions on all aspects of them".
The guide refers to some agricultural functions being exercisable by the Secretary of State for Wales and the Minister of Agriculture, acting together. An option is to

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split that joint function so that the assembly will be able to exercise the functions separately. The guide points out that before splitting the functions in that way:
"it is necessary to consider whether it is desirable to do so".
I wonder what that phrase means. I hope that the Minister will agree that Parliament should be told now what is or what is not desirable.
The draft order proposes to transfer the main animal health and welfare legislation (the Animal Health Act 1981 and the Animal Health and Welfare Act 1984), but I wonder whether it would be sensible to have different regulations applying to animal diseases either side of the Border. Diseases, particularly animal ones, can spread easily, and are no respecters of boundaries.
Similarly, the main legislation on food safety (the Food Safety Act 1990) is on the list to be transferred, but in the case of some emergency would not it be desirable to have a quick and uniform UK plan? My noble friend Lord Willoughby de Broke has tabled an amendment on the subject. I am concerned also that it must be possible in such cases to transfer power back to the Secretary of State or to the assembly.
It is proposed under the draft order to transfer the Food and Environment Protection Act 1985 which includes provisions on the control of pesticides. Surely the Government do not intend to duplicate the specialist and carefully constructed system of scientific advisory committees which currently vet the safety of pesticides, which this place debated at considerable length when that Bill went through. I look forward to a positive answers to those queries, because time is running out.
I move now to Amendment No. 64 which, as I said, is slightly different. Clause 22(1) provides that a function can be transferred to the assembly to be exercised concurrently with the Minister of the Crown. The draft transfer order proposes to transfer the Town and Country Planning Act 1990, including provisions for a right of appeal against planning decisions to the Secretary of State.
It is desirable that planning decisions reached on appeal follow a consistent policy and are reached at arm's length from what can often be turbulent local politics surrounding a proposed development. I fear—I am always frightened of everything—that if the assembly had sole charge of reaching decisions on appeals there would be no guarantee of those decisions not becoming politicised in due course. For that reason, there is merit in having that power jointly with the Secretary of State.
I suppose that I should declare an interest. Anyone who has ever had experience of trying to obtain planning permission knows only too well how local authorities—I am sorry to say particularly my own in Anglesey—are swayed by public opinion, and, I fear, on occasions, by backhanders. Farmers today need to diversify to survive. They need to know that their applications to do so will be dealt with in accordance with the guidelines laid down and not on political or personal prejudice. The amendment's intention is to achieve that.
I suspect that the Minister, the noble Lord, Lord Elis-Thomas, and, of course, the Liberal Peers will say that I should be more trustful. Not only is my name Thomas, but 50 years of farming have made me always assume the worst. We are a revising Chamber, and that is the attitude that we should take. I beg to move.
Lord Willoughby de Broke: I speak to Amendment No. 64C which is intended to clarify the Government's intentions with regard to the devolvement to the assembly of food safety powers. The latest draft of the transfer of functions order lists the Food Safety Act as one of the pieces of legislation to be devolved to the assembly in respect of the powers currently exercised by the Secretary of State for Wales.
As the Minister will be aware, it was under the umbrella of the Food Safety Act 1990 that the beef bones regulations were laid. This is not the moment to rehash the arguments against those regulations which were so heavily criticised in a Motion debate in this place on 27th January last when an overwhelming majority of noble Lords voted that they be revoked.
It might be worth reminding the Committee that the only prosecution to date under those regulations was thrown out of court as they were held to be bad law and unworkable. Will the Minister confirm that through the devolved powers which are vested under the Food Safety Act, the Welsh assembly will have the power to revoke those oppressive and unnecessary regulations?
Lord Crickhowell: The Committee may wonder why Amendment No. 82, which concerns higher education in Wales, is grouped with amendments on agriculture. I believe that that has been done entirely to assist me. I have an engagement later this evening which I simply cannot miss. A debate now may also help a number of other noble Lords who have an interest in higher education in Wales.
My amendment contains a serious flaw. I drafted it entirely in terms of the University of Wales. As I shall elaborate later, my remarks apply equally to other higher education institutions in Wales. I shall set out some of the details of the possible impact on those institutions.
At Second Reading, I expressed anxieties about the future financial arrangements for the University of Wales. I referred to the matter in those terms in the Second Reading debate. The noble and learned Lord the Solicitor-General sought to reassure me. Subsequently he wrote me a detailed and helpful letter. I have to say that it does not reassure me, but it may be helpful to quote from it. He sets out clearly the present structure under which higher education in Wales is financed. On 5th May, he wrote:
"As you are aware, whilst the Secretary of State for Wales is currently responsible for determining the overall allocation each year for higher education in Wales, it is the responsibility of the Higher Education Funding Council for Wales"—
fondly known, I understand, in university circles as HEFCW—
"to determine the actual allocation that each higher education institution receives for teaching and research.

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In determining the overall amount to be allocated to higher education, Ministers take full account of a wide variety of issues facing the sector".
I emphasise that sentence.
"The advice of HEFCW on the sector's funding requirements is also sought and fully considered.
There has for decades been an arm's length relationship between governments and HE institutions in order to maintain the traditional independence of universities. The Government believes it is sensible to maintain this approach under devolution, which is why the Higher Education Funding Council will continue in its present form. Therefore, whilst the assembly will have the responsibility for determining the overall allocation to higher education in Wales, it will not assume responsibility for making allocations to individual institutions. That, as at present, will remain the responsibility of HEFCW. The Assembly will also not have any powers to abolish HEFCW, and the ability of Research Councils to fund research in Welsh institutions is also not affected by the Bill.
Given these provisions the Government remains firmly of the view that there is no requirement for the allocation of the overall resources for higher education in Wales to become a joint function of the Assembly and the UK Government. As at present, the sector will have opportunities to press its case in order to seek to secure the level of funding it requires. The Assembly will also no doubt continue to seek the advice of HEFCW on the sector's funding requirements".
Yes, but the problem lies in a later paragraph in the Solicitor-General's letter in which he states:
"The Government had already made it clear that the Barnett formula will continue to be used for determining changes to the whole Welsh Block and any revision to it will be preceded by a full needs assessment in which the Assembly will be involved".
The problem about the Barnett formula is that it is population based. I cannot remember the exact percentage, but about 5.5 per cent. of the total spend is allocated to Wales. The university expenditure has no relationship with the population of Wales. The University of Wales and the other institutions to which I shall refer in detail in a moment are important and great Welsh institutions, but they are also great British institutions. Only a minority of the students come from Wales. Of the approximately 14,000 members of Cardiff University, of which I have the privilege to be president, a large number come from England and Scotland and at present about 1,300 from other parts of the world.
For legitimate and understandable reasons, the assembly may be seriously concerned about the level of expenditure which falls on its budget and which is required in effect to finance the education of people from other parts of the United Kingdom. The numbers are large. For 1998–99, Cardiff University will receive in grants over £52.5 million, nearly £36 million for teaching and over £16.5 million for research. The total for higher education in 1998–99 for all the Welsh higher education institutions amounts to over £240 million. For example, the University of Glamorgan receives over £31 million. The North-East Wales Institute receives £10 million and the Swansea Institute of Higher Education over £9 million. Those are large sums of money. The total is a large sum in relation to the total Welsh block of around £7 billion.
Anyone who has been involved in public expenditure rounds—as many in this Committee have—will know the pressures that arise from the insatiable demands for the funding of the health
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service, education and other priorities which will be the responsibility of the assembly. There is a fear in university circles that there will be a temptation to whittle away at the initial block allocated to higher education, or at least not to increase it at the same rate at which it is being increased to meet rising numbers, inflation or other factors in the United Kingdom as a whole.
It is a legitimate anxiety which I share. It should give us all considerable grounds for concern. The university sector is now a highly competitive sector. Cardiff has recently leapt sharply up the assessment table for research institutions. Perhaps I may take this opportunity to put on the record the fact that the tables published recently in The Times and other journals unfairly treat the Welsh institutions. The teaching assessment basis is different; the marking is different; and the necessary adjustments have not been made. Therefore a number of the Welsh universities come lower down the table than they should do if the calculation were made on a proper basis.
However, that is not the central point. People are looking closely at the performance of the university sector and individual institutions in it. It is a highly competitive business. To use the old phrase, Welsh colleges and universities have to compete on a level playing field with those elsewhere in the United Kingdom. All I seek to do in my amendment is to provide a protection so that the funding arrangements will ensure that the universities are able to act as they have in the past.
I refer again to the letter of the noble and learned Lord the Solicitor-General in which he said:
"Ministers take full account of a wide variety of issues facing the sector".
When the present allocations were initiated by the Secretary of State for Wales they were not controlled by or decided on the basis of the Barnett formula. They were decided on a basis necessary for higher education in Wales after the responsibility had been transferred to the Welsh Office. It is highly unsatisfactory that we should look to the future in a situation where the Barnett formula may have a damaging impact on Welsh higher education.
The guide to the transfer of functions order, to which I and others referred when speaking to an earlier set of amendments, states that, where appropriate, Schedule 1 directs that certain functions are to be exercised concurrently by the assembly and a Minister of the Crown. That means that both the assembly and the Minister can exercise the power with respect to Wales. The examples given in the guidance notes are interesting. It goes on to state,
"Examples of Section 5 of the Science and Technology Act 1965, power to incur expenditure in carrying on or supporting scientific research, and Section 57 of the Transport Act 1968 grants research and development in connection with transport services".
All I seek to do is to give such concurrent powers. Indeed, I have lifted the wording of my clause from Clause 21 of the Bill, which provides that concurrent powers can be granted. My object in moving the amendment is to protect the higher education

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institutions in Wales, to make sure that they are adequately funded in the future and to make sure that if the Barnett formula imposes unavoidable tax constraints on the ability of the assembly to fund higher education the Secretary of State and the Government at Westminster can intervene in order to protect the university.
Lord Cledwyn of Penrhos: I followed the references to our university made by the noble Lord, Lord Crickhowell, on Second Reading and the discussion he said he had had during the past few months with his colleagues in Cardiff on the present situation of the university. I have a similar interest in the University of Bangor and before that as pro-chancellor of Aberystwyth. We are fortunate tonight that we have my noble friend the Minister, who is now pro-chancellor. I am sure he will agree that the people of Wales—north, mid and south—are very proud of their university. We must not forget that the university came into existence more than a century ago because the people of Wales wanted it and because they gave their limited money so that their children, like those in England and Scotland, might have their colleges. It is one of our greatest achievements, of which we are proud. We are aware that there is an intake into the Welsh universities from England and elsewhere, but that does not change the name of the University of Wales or its character.
The members of the assembly will see education as central in its priorities for Wales, and we shall all support that. We are concerned that the University of Wales should be properly funded on the same level as the universities of England and Scotland. I regret that we have run into real difficulties in recent years.
The assembly must be treated properly. It must be enabled to ensure that the colleges have the income to carry out their range of work at the appropriate level. The Welsh assembly can launch the University of Wales into a new era. That is what we intend should take place, and it is one of the reasons why we want an assembly. However, I must draw the attention of the Committee to the fact that the general view, and the amendment, are in breach of the principle of devolution upon which the Bill has been constructed. My understanding is that the assembly must be able to determine its policies and its priorities of expenditure without being under a duty to consult a Whitehall Minister, who is unlikely to understand the Welsh background. I feel obliged to draw this to the attention of the Committee. We must be careful not to avoid one of the fundamentals of the Bill.
The Earl of Courtown: I shall speak to Amendments Nos. 60 to 64 which stand in my name and that of my noble friend Lord Stanley of Alderley. First, I declare a former interest. I am a chartered surveyor, qualified in the rural practice division of that institution, and before taking part in your Lordships' House was for a number of years in practice in Wales as a land and estate manager.
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I understand some of the concerns expressed by the noble Lord, Lord Elis-Thomas, but I do not believe that they are quite right. The issues covering agriculture are of prime importance. My noble friend and myself are not making an effort to throw a spanner in the works of the Bill but are trying to cover practical, important issues.
This group of amendments deals with the transfer of functions relating to agriculture, animal health and welfare, food safety, health and safety and pesticides. In connection with those issues, I am looking forward to hearing what the Minister has to say when he speaks to the new schedule proposed in Amendment No. 76A. It is not entirely clear to me whether that will solve the problems which concern me.
The draft order proposes to transfer those issues, particularly in the case of animal health and welfare legislation. Surely it would be sensible to have the same regulations each side of the border; for example, in the case of foot and mouth disease, which is no respecter of borders or boundaries. The same principle applies to food and safety. A quick and uniform approach to a worst possible scenario throughout the UK would be imperative. As regards pesticides, such duplication of highly specialised systems could be considered ill-advised and wasteful.
As regards Amendment No. 64, the subject of planning is often debated in your Lordships' House. Consistency in decisions must always be seen to be carried out. The Bill as currently drafted removes the requirement of functions being exercisable only by a Minister once he has consulted or secured the agreement of another Minister. Our amendment would require any town and country planning functions which were to be transferred to be exercised concurrently with a Minister of the Crown, so delivering consistency of decisions.
I am looking forward to hearing what the Minister has to say in reply to my amendments and to those of my noble friends Lord Crickhowell and Lord Willoughby de Broke.
5.30 p.m.
Lord Callaghan of Cardiff: It is unfortunate that these two debates are running together. Not having scrutinised the Marshalled List with great care, I did not realise that we were going to discuss education in the middle of discussing agriculture. Therefore, I shall not comment on what the noble Earl has just said. I shall simply revert to the amendment tabled in the name of the noble Lord, Lord Crickhowell.
I have some sympathy with what the noble Lord is trying to do, but I believe that the amendment goes much too far in specifying that "any function" of the assembly must only be "exercisable" after consultation with a Minister. I have a simple approach to university funding and education: the further the Government keep away from those things the better. I would be most concerned if the assembly were to take a more detailed interest in the various universities which make up the University of Wales than is taken at present by the Higher Education Funding Council for Wales. Indeed, I believe that the present system is perfectly appropriate.

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I can say that because I have had some 10 years' experience in that respect. It enables the border considerations between English and Welsh universities to be reconciled very easily.
When I reflect upon the amount of research that is carried out jointly by Welsh and English universities and the interconnection that exists between them in pursuing those aims, I must say that I would much prefer to see such matters left as far as is possible to the Higher Education Funding Council for Wales and to the similar council in England. I hope that the assembly will not interfere too much in such matters. Therefore, rather than promote close ministerial collaboration between England and Wales, which will almost certainly lead to greater intervention, on the whole I would go in the other direction. I hope that my noble friend, the Pro-Chancellor of the University of Wales, will agree to do so in his capacity as a Minister of the Crown.
The Earl of Balfour: I have a few brief comments to make. First, Amendment No. 62 deals with health and safety in the workplace. I believe that the Health and Safety Executive should be a universal body within the United Kingdom to ensure that all standards are exactly the same. Secondly, the last two lines of Amendment No. 64C refer to,
"other food and ingredients for human consumption derived from bovine animals".
After the word "human", I wish that we could add the word "animal". I shall explain why. I am quite certain that one of the main causes of BSE was that herbivores were given extracts from meat. I am sure that that is what triggered it off.
Thirdly, when you buy tinned food for a cat, a dog or any pet, it is most disturbing to read the wording on the tins which specifies that the contents contain derivatives of this, that or the other, without giving details of precisely what the can contains. I wish that we could cover both food for humans and food for animals in this provision. I am sure that that would help many a farmer with a dairy herd who wants to keep up his milk yields and who has, therefore, had to give his herd some artificial food. Most of them really do not have a clue what the food is made of.
Lord Simon of Glaisdale: Members of the Committee heard an important speech from the noble Lord, Lord Crickhowell. It was obviously deeply researched and, indeed, was cogently argued. I shall make only one minor point. When we talk about the Barnett formula in relation to Wales, it should be known as the Barnett/Rees formula. I point that out to the Committee because it was as Chief Secretary that the noble Lord, Lord Rees, extended the scheme to Wales. Therefore, he should have the credit for doing so. It only goes to show that blood is thicker than bilge.
I turn now to the important intervention of the noble Lord, Lord Callaghan. Since about the third quarter of the last century, the Government in this country have kept themselves separate—that is to say, at a distance—from the universities: the arm's length approach. Today there is a buffer between the Government and the universities; namely, the Higher Education Funding
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Council. If such responsibility were transferred to the assembly, I see no reason why it should not, as I believe it should, adopt the arm's length approach and transact its relationship through the appropriate HEFC.
I move on from those elevated matters to the more mundane subject of food safety. Amendment No. 61 and Amendment No. 64C, tabled in the name of the noble Lord, Lord Willoughby de Broke, are in total conflict. The former would keep food safety matters as a responsibility of Westminster, while the proposal from the noble Lord, Lord Willoughby de Broke, is that they should be handed over specifically to the assembly.
When Members of this Chamber discussed the matter in the context of the order of the Ministry of Agriculture, the noble Lord, Lord Stanley of Alderley, appeared to be reduced to eating his dog's dinner. Therefore, on that ground, I should have thought that he would have much preferred Amendment No. 64C. For myself, I can see no reason why food safety, or indeed consumer protection as proposed in a later amendment tabled by my noble friend Lord Elis-Thomas, should not be the responsibility of the assembly. Indeed, I see every reason why they should be.
Viscount Bledisloe: Into this extraordinary mixture of sheep and university students, I should like to add some brief comments on Amendments Nos. 60 and 63. As a part-time farmer, I confess that I find it a little strange to conceive that there should be different rules for tractor safety, or for pesticides, either side of the Border. However, if there really must be such differences, what would happen to a farm which straddles the Border? Animals move, tractors move and pesticides may be spread on any field on a farm. Will some poor farmer whose farm happens to straddle the Border really be obliged to obey different rules and thereby have his tractors differently equipped, while using different pesticides either side of the Border? Alternatively, will there be some provision whereby such a farm can be treated in its entirety as belonging one side of the Border and not the other, so that a farmer who has, say, hundred hectares in Wales and only 30 hectares in England can be treated as a Welsh farmer and not be obliged to change the cab of his tractor or the mix of his pesticides when he crosses the Border?
Lord Molyneaux of Killead: I hope I can be of some small assistance to my noble friend. If he cares to visit the land frontier of the United Kingdom between Northern Ireland and the Irish Republic he will find that cross-border traffic, particularly in livestock, is made easy by the construction of a long shed with doors at either end rather like an aircraft hangar. Not only do livestock progress from one end to the other on foot, but there are good tarmac roads leading from either end and whole lorries or sometimes four lorries come in and park there overnight when the Customs staff are not looking and out they go on the other side. Thanks to our wonderful common agricultural policy they manage to acquire subsidy at least six times a day on the same cattle.
Lord Prys-Davies: I wish to speak to Amendment No. 64 and then to Amendment No. 82. Both these

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amendments have one thing in common. I believe both would involve consultation with a Minister of the Crown. As regards Amendment No. 64, it would be helpful and reassuring if the Minister could indicate how the Welsh assembly will discharge those quasi-judicial functions. A planning appeal is a quasi-judicial function. It would be helpful if the Minister could give an indication of how that will be discharged.
I now turn to Amendment No. 82. I should declare an interest as currently I have the privilege to be a president of the University of Wales, Swansea. I have listened carefully to the speech of the noble Lord, Lord Crickhowell, and the case which he has advanced. Unfortunately, I do not have a copy of the letter from the noble and learned Lord the Solicitor-General. Perhaps that is my fault. I draw comfort from a statement by the official historian of the University of Wales, Aberystwyth, Mr. E.L. Ellis, who noted in the official history of that university that,
"The struggle for Welsh national identity and the striving for educational opportunity have always gone hand in hand".
I for my part do not think that the national assembly will easily depart from that tradition. I have a feeling that it will give investment in higher education a high priority indeed. If I am wrong, it seems to me that there is an objection in principle to the amendment which has been ably spoken to by the noble Lord, Lord Crickhowell. My noble friend Lord Cledwyn has referred to that. The essence of devolution is that the national assembly is to be responsible for the devolved services and is to have the freedom to determine how that block grant is to be distributed between devolved services. I believe that that function should be exercised without consultation with another Whitehall-based department. For those reasons I am unable to accept the amendment which has been spoken to by the noble Lord, Lord Crickhowell.
5.45 p.m.
Lord Roberts of Conwy: This is indeed a curious mix of amendments. I am happy to endorse what was said by my noble friends Lord Stanley of Alderley and Lord Willoughby de Broke about their amendments. I see no reason to add to that. I thought that the noble Viscount, Lord Bledisloe, made a fair point in talking about farms that straddle the border. I know that this matter is of concern to the fanning unions and of course to the farmers who are involved in "split farming" as we might call it, where some land is in Wales and some is outside it.
My noble friend Lord Courtown dealt clearly with the difficult issue of planning appeals. After all, given the fact that so many powers and responsibilities will remain at Westminster—for example, the primary legislation on which so much of planning legislation is based—it could be wiser to make the determination of planning appeals a joint function. I shall be anxious to hear the Minister's response to that point and to the quasi-judicial point raised by the noble Lord, Lord Prys-Davies. My noble friend Lord Crickhowell has made a powerful plea on behalf of the University of Wales and the Higher Education Funding Council. Of
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course he reflects a concern which is deeply felt in the university. The Minister, as pro-chancellor, will be well aware of that. I was present at a meeting of the University Court which he chaired where a resolution was passed expressing that concern. I should declare an interest and say that I was present as President of the University of Wales College of Medicine.
The concern about funding through the assembly is widespread and extends to other devolved fields. I must admit immediately that I think that higher education is in a special position in that, as the noble Lord, Lord Crickhowell, pointed out, the population of the university and higher education sector is not strictly speaking related to the population of Wales, and neither is its growth. I am sure that we shall undoubtedly return to this subject of funding of the higher education sector and other sectors when we reach Part IV of the Bill and Clause 82 which deals with the Secretary of State's power to make grants to the assembly. We look forward eagerly to receiving any kind of assurance that the Minister can give. I am sure that he will give of his best, bearing in mind his alter ego as pro-chancellor.
Lord Williams of Mostyn: These amendments point in different directions, as has already been observed. Those in the names of the noble Lords, Lord Stanley and Lord Crickhowell, seek to restrict the transfer of functions. The noble Lord, Lord Willoughby de Broke, seeks to require that other functions are transferred. Amendments Nos. 60 to 63 in the names of the noble Lord, Lord Stanley, and the noble Earl, Lord Courtown, seek to prevent certain functions from being transferred to the assembly.
The noble Viscount asked what happens when you have a farm on both sides of the border. There are a few cases of a farm straddling both sides of the border. At present there are different regulations which obtain on Welsh land as opposed to English land. I shall give examples to assuage any scepticism about my proposition. The moorland livestock extensification (Wales) regulations and the Rural Development Grants Agriculture (Wales) pertain only to land on the Welsh side of the border.
Viscount Bledisloe: Surely those are regulations which relate to the land itself. The point I sought to make was that as regards regulations concerning health and animals, the same animal and the same tractor and the same pesticide may be used or stationed one day on one side of the border and another day on the other side. We all recognise that one may have land part of which is in an environmentally sensitive area and part of which is not, and different regulations apply. My concern is that extremely mobile things such as tractors and sheep may come under different regulations each time they push through a hedge.
Lord Williams of Mostyn: I am grateful for that further illustration. Perhaps I may deal with it. Some of the amendments would prevent a transfer order transferring functions with respect to animal health and welfare, food safety, health and safety in the workplace and the regulation of pesticides, as the noble Lord,

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Lord Stanley, helpfully set out in his sub-categories. Health and safety are not among the functions of the Secretary of State for Wales and the Government have no plans to transfer any such functions to the assembly. We believe it wrong to rule that out for all time. In five, 10 or 20 years' time, a different view might be taken. But at present there is no possibility of health and safety being transferred as one of the functions of the Secretary of State.
As was pointed out by a number of noble Lords, the Secretary of State has functions with respect to animal health, welfare and food safety. We intend to transfer those to the assembly. In those cases, and therefore also in relation to the amendment tabled in the name of the noble Lord, Lord Willoughby de Broke, we are considering retaining the arrangements under which functions are exercised jointly with the Minister of Agriculture. I hope that deals with the specific question put by the noble Viscount.
To turn to the noble Earl's point, we believe that pesticides are in a different category. We are considering not transferring those to the assembly for the reasons given; namely, there is a substantial body of acquired expertise. The Welsh Office is entirely dependent on specialist advice from MAFF's Pesticides Safety Directorate and the Health and Safety Executive. We believe that there is a case, examining each case individually, for not transferring those.
We do not believe that there ought to be a limit in the way in which ministerial functions may be transferred in future. If a successor government do not wish to transfer functions, they will not bring forward an order; and if Parliament does not wish the functions to be transferred, then it will not approve such an order. We think that that is a sensible way of dealing with the matter.
Amendment No. 64 tabled by the noble Lord, Lord Stanley of Alderley, requires that the transfer order makes the determination of planning appeals a concurrent function, one which either the assembly or the Minister could exercise. We do not believe that that is practically workable for developers, local authorities or individuals. It would not be clear who was going to decide any particular planning appeal since either the assembly or the Minister could exercise that function. We do not think that there should be uncertainty about quasi-judicial functions. My noble friend Lord Prys-Davies asked that question specifically. The function will be transferred to the assembly, and I dare say in due time the assembly will wish to give careful attention, when considering its standing orders and methods of procedure, to how it will deal with the problems he identified.
Turning to Amendment No. 82, there is hardly any noble Lord who has spoken who does not seem to have some position of responsibility in the University of Wales. However, I stress, as your Lordships kindly have done already, that I am speaking on behalf of the Government and not the university.
The noble Lord, Lord Merlyn-Rees, has also indicated to me that the University of Glamorgan has inexplicably been left out; but the noble Lord, Lord Crickhowell, has already confessed and avoided that error.
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The points made by your Lordships, and in particular by my noble friend Lord Callaghan of Cardiff, are extremely important. We have given a good deal of thought to the matter. We believe the solution we have arrived at to be a legitimate safeguard for the university's interests. We have specifically decided to retain the Higher Education Funding Council for Wales.
The functions of that council will remain the same. All that the assembly can do is what is presently capable of being done by the Secretary of State for Wales. It is possible, of course, that the assembly might wish to give increased funding to HEFCW within its budgetary constraints. The assembly will not be able to abolish the funding council under Clause 29—though I appreciate that it may be that the noble Lord, Lord Elis-Thomas, will wish us to alter that. We have therefore decided to recognise the importance of academic institutions in the life of any community, not least on historical and cultural grounds in Wales, to maintain HEFCW and simply to keep intact its functions but transferring the functions that the Secretary of State for Wales has vis-à-vis HEFCW to the assembly. We believe that that is the right way to do it.
Other than that, the Secretary of State has a very limited function in respect of the University of Wales which I mention for the sake of completeness. It is advising Her Majesty from time to time on changes to the charter and statutes, as is seen in the White Paper. The assembly will not take over that role.
Apart from the historical attachment that has been mentioned, there is the enormous economic impact made by the University of Wales to the prosperity of Wales. To take the University of Wales at Cardiff as an example, papers have been produced making it plain that enormous economic benefit goes out to the community generally from institutions of high quality.
We do not see, however, that HEFCW should be treated any differently vis-à-vis assembly decisions, decisions with respect to the Welsh Development Agency, funding for local government or, for instance, plans for improving the trunk road network. The assembly is well placed, first, to identify, and, secondly, to protect the true interests of university education in Wales.
I hope that I have been able to deal with the points made. On that basis, I invite noble Lords to withdraw their respective amendments.
Lord Willoughby de Broke: Before the Minister sits down, will he confirm that the effect of his remarks is that the Welsh assembly will not have the power to revoke the beef bones legislation because it will be subject to joint consultation with the Minister of Agriculture?
Lord Williams of Mostyn: The noble Lord is right. If I did not make that plain, I ought to have done. Because the powers remain joint, the assembly alone will not be able to revoke them.
Lord Stanley of Alderley: Before withdrawing my amendment, perhaps I may answer one or two of the

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questions put. The noble Viscount, Lord Bledisloe, asked about the border problem. If he can wait until then, I have the perfect answer in Amendment No. 196B, which I am absolutely sure the Minister will accept. I leave him in anticipation as to what that is.
I was extremely pleased that the noble Lord, Lord Prys-Davies, saw the point over the planning appeals. The matter needs considerable thought. When I suggested this amendment to certain organisations, I just wanted the Secretary of State to do it. That is what I should like. However, I was told that that would be most uncharitable to the assembly—hence the division of power. But serious consideration is needed as to how it will be done. It should be done judicially and quickly and in accordance with the guidelines in order to give those of us on the ground some idea of what we are doing.
I thank the Minister for his answers. He has obviously not been a Minister for long enough to know that he should not give any answer, at any time, at any price. However, I thank him. I am not sure that I liked the answers. As I understood it, the assembly won two and Westminster won two, if I may put it as brutally as that. I am grateful for the Minister's replies and beg leave to withdraw my amendment.
Lord Willoughby de Broke: I have to confess that I am rather disappointed with the Minister's reply to my Amendment No. 64C. It seems inconsistent with what we have heard this afternoon. All—
Baroness Farrington of Ribbleton: Perhaps the noble Lord will forgive my interrupting him. As the noble Lord, Lord Stanley of Alderley, has withdrawn his amendment, I think that we ought to deal with that procedurally before moving to the next.
Amendment, by leave, withdrawn.
[Amendments Nos. 61 to 64 not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 64A:
Page 13, line 14, at end insert—
("( ) No draft of an Order in Council laid before each House of Parliament under subsection (2) above shall make provision for transferring to the Assembly functions concerning shipping.").
The noble Lord said: I am sorry, I do not know who is in a muddle. Amendment No. 64A is in the next grouping and is totally different from what we have been dealing with; it does not have to do with sheep or students.
I tabled Amendments Nos. 64A and 64B, which are very simple amendments, as a member of the committee of management of the RNLI. As the Minister probably knows, the RNLI undertakes—indeed, binds itself to performing—certain sea rescue services which are determined in discussion with the Department of the Environment, Transport and the Regions. Briefly, the RNLI is interested in the EC shipping register, navigation systems and aids, yachting, boating, pleasure craft, water sports and other leisure activities, beaches, fishing boats and shipping safety, marine engineering,
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marine distress signals, construction and equipment standards, VAT and its application to charities and charity-law reform. I realise that the last two areas should be discussed under Clause 114. My reason for raising the other areas of interest of the RNLI is to ask the Minister whether he can give an assurance that none of the matters I have mentioned is likely to be devolved. I am sure he can see the problem it would cause if, for instance, the assembly wanted the RNLI to adhere to a different rescue code from that of the rest of the United Kingdom. In passing, I should say that currently these practices are similar throughout the United Kingdom and the Republic of Ireland.
The Committee may remember that there was, and is, a problem over powered water craft. I see the noble Baroness, Lady Farrington, smiling. I am sure that the Minister will understand, as did the noble Baroness at Question Time a month or so ago, that diverse regulations for such craft would not be sensible. I beg to move.
The Earl of Balfour: I am also interested in these amendments, perhaps on slightly different grounds. So far as concerns shipping, I trust that the buoyed channels, lighthouses, and so on, will continue to be managed by the Trinity House organisation, as has been the case for a long time.
As regards the Maritime and Coastguard Agency, a concern of us all, including, I am sure, the Government, is to prevent drugs coming into the country. I believe that the Coastguard and Customs and Excise services need to be under national control rather than an area control. In this respect, my noble friends Lord Stanley and Lord Courtown have raised important points.
Lord Mackay of Ardbrecknish: Perhaps I may briefly intervene on these two amendments in the name of my noble friend Lord Stanley of Alderley. I trust that there was never any intention to devolve shipping and the Maritime and Coastguard Agency. I say that as someone who in the past, for some half a year, had responsibility for shipping and the Maritime and Coastguard Agency. It seems to me inconceivable that responsibility for these matters should be devolved.
Shipping is a complicated and international matter. I do not believe that it would be possible for the assembly to have a different shipping policy from that of the UK generally. It would also be inconsistent with the concept of devolution. The same is true of the Maritime and Coastguard Agency. My noble friend Lord Balfour made the point very well. I do not believe that we shall even risk the ire of the noble Lord, Lord Elis-Thomas, by suggesting that these are not matters which should be devolved to the Welsh assembly. I fear that the Minister is being invited to answer the question, "Have you stopped beating your wife?". I hope he will be able to give an assurance that these matters not only will not be devolved in the first tranche but will not be devolved in any subsequent tranches, which is really the problem with issues such as this.
Lord Williams of Mostyn: In answer to the question, "Have you stopped beating your wife?", I think I ought

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to say, "Yes and no". In respect of the more fundamental question, I am grateful for the opportunity given to me by the noble Lords, Lord Stanley of Alderley and Lord Mackay of Ardbrecknish, to give an assurance on this point. As the noble Lord rightly observed, these are not functions of the Secretary of State for Wales. We have no plans to transfer them to the assembly. As I said on earlier occasions, we do not see a case for ruling them out indefinitely, but I stress that we have no plans, in the first stage or any subsequent stage, to remove these powers or functions to the assembly, substantially for the reasons that have been put forward: that there are some aspects of national life which are best dealt with more generally than specifically.
Lord Stanley of Alderley: I am most grateful to the noble Lord. That will be a great reassurance. I hope I shall not have to make him stand by it. There are marginal cases, as the noble Baroness knows, when local authorities try to put in different regulations which could cause problems. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 64B not moved.]
Lord Willoughby de Broke Lord Willoughby de Broke moved Amendment No. 64C:
Page 13, line 14, at end insert—
("( ) The draft of an Order in Council laid before each House of Parliament under subsection (2) above shall include provision for the transfer to the Assembly of those powers exercisable by Ministers of the Crown in relation to Wales to make provision under the Food Safety Act 1990 in relation to bones, bone-in beef and other food and ingredients for human consumption derived from bovine animals.").
The noble Lord said: I am a little disappointed with the Minister's reply, which seems to be inconsistent with the feelings and sentiments that have been expressed this afternoon in this Chamber. Some of my noble friends on these Benches have sought to withdraw powers from the Welsh assembly. My amendment seeks to give powers to the Welsh assembly; namely, the power to choose whether to eat beef on the bone. That seems entirely consistent with the powers which are to be devolved to the assembly under the Food Safety Act. As the noble Lord, Lord Elis-Thomas, said, either this is a responsible measure for devolution or it is not. As the noble Lords, Lord Hooson and Lord Thomas of Gresford, said, we must not hold back but must trust that the Welsh assembly will work well. It seems to me inconsistent to retain the powers of the Ministry of Agriculture for this item under the Food Safety Act. I beg to move the amendment and should like to test the opinion of the Committee on it.
6.7 p.m.
On Question, Whether the said amendment (No. 64C) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 96.

Division No. 1

CONTENTS

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

Lauderdale, E.

Annaly, L.

Long, V.

Berners, B.

Marsh, L.

Biddulph, L.

Masham of Ilton, B.

Broadbridge, L.

Monson, L.

Chesham, L.

Moran, L.

Clark of Kempston, L.

Newall, L.

Cumberlege, B.

Northesk, E.

Denbigh, E.

Pender, L.

Dixon-Smith, L.

Renton, L.

Harlech, L.

Rotherwick, L.

Harmsworth, L.

Saltoun of Abernethy, Ly.

Hemphill, L.

Seccombe, B.

Kenyon, L.

Skelmersdale, L.

Keyes, L.

Stanley of Alderley, L.

Kimball, L.

Vivian, L.

Knight of Collingtree, B.

Willoughby de Broke, L. [Teller.]

NOT-CONTENTS

Acton, L.

Linklater of Butterstone, B.

Addington, L.

Lockwood, B.

Ashley of Stoke, L.

McIntosh of Haringey, L. [Teller.]

Barnett, L.

Berkeley, L.

Mackie of Benshie, L.

Blackstone, B.

McNair, L.

Borrie, L.

Maddock, B.

Brooks of Tremorfa, L.

Mar, C.

Callaghan of Cardiff, L.

Merlyn-Rees, L.

Carlisle, E.

Milner of Leeds, L.

Carter, L. [Teller.]

Mishcon, L.

Chorley, L.

Molyneaux of Killead, L.

Cledwyn of Penrhos, L.

Monkswell, L.

Clinton-Davis, L.

Montague of Oxford, L.

Cocks of Hartcliffe, L.

Morris of Manchester, L.

Craig of Radley, L.

Napier and Ettrick, L.

David, B.

Nicol, B.

Davies of Coity, L.

Orme, L.

Dean of Beswick, L.

Paul, L.

Dholakia, L.

Pitkeathley, B.

Donoughue, L.

Plant of Highfield, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Elis-Thomas, L.

Prys-Davies, L.

Evans of Parkside, L.

Puttnam, L.

Falconer of Thoroton, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Randall of St. Budeaux, L.

Geraint, L.

Rendell of Babergh, B.

Gilbert, L.

Renwick of Clifton, L.

Glenamara, L.

Richard, L. [Lord Privy Seal.]

Graham of Edmonton, L.

Russell, E.

Grantchester, L.

St. Davids, V.

Grenfell, L.

Sefton of Garston, L.

Grey, E.

Sheppard of Liverpool, L.

Hampton, L.

Simpson of Dunkeld, L.

Hanworth, V.

Smith of Gilmorehill, B.

Hardy of Wath, L.

Steel of Aikwood, L.

Haskel, L.

Stoddart of Swindon, L.

Hilton of Eggardon, B.

Stone of Blackheath, L.

Hollis of Heigham, B.

Thomas of Gresford, L.

Hooson, L.

Thomas of Walliswood, B.

Hoyle, L.

Tordoff, L.

Irvine of Lairg, L. [Lord Chancellor.]

Wallace of Saltaire, L.

Warnock, B.

Islwyn, L.

Whitty, L.

Jenkins of Hillhead, L.

Williams of Crosby, B.

Kennedy of The Shaws, B.

Williams of Elvel, L.

Kennet, L.

Williams of Mostyn, L.

Kilbracken, L.

Winchilsea and Nottingham, E.

Kirkhill, L.

Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.17 p.m.
[Amendments Nos. 65 and 66 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 66A:
Page 13, line 25, at end insert—
("( Schedule (Transfer etc. of functions: further provisions) (which makes further provision about the transfer etc. of functions by Order in Council under this section) has effect.").
The noble Lord said: Amendment No. 66A is largely self-explanatory. It gives us the opportunity of debating what functions the assembly is to have in England with respect to cross-border bodies; that is, bodies whose activities relate to Wales and other parts of the United Kingdom. In moving Amendment No. 66A, I shall speak also to the other amendments in my name in this grouping.
The main effect of the Government's amendments is to replace Clause 23 with a new schedule and I shall therefore concentrate on the paragraphs of the new schedule that are new or changed and on the amendments to Clauses 30, 45 and 59 that flow from them. It may be helpful if I reply at the end of our discussions on this matter to questions raised in relation to Amendments Nos. 80, 81 and 196B, which are also included in the group.
The present position is that the Government have flexible arrangements to deal with issues which straddle the border between Wales and England. Obviously, the Rivers Severn, the Wye and the Dee all rise in Wales and flow through parts of England. Cross-boundary issues plainly arise in that regard. For many years we have had in place sensible arrangements whereby the Welsh Office looks after the administration of some issues to do with waters and rivers which extend beyond Wales into parts of Herefordshire and Cheshire and, similarly, the DETR administers some matters for Montgomeryshire.
There does not seem any compelling reason why we should now draw a doctrinaire line down the border between Wales and England and command the waters to part, or why we should have more costly and complex administrative arrangements on the ground. This is the reason why Clause 23(6) allows the assembly to be given functions with respect to cross-border areas, that is, areas including a part but not the whole of England as well as the whole or part of Wales.
We have looked again at the drafting of these provisions, bearing in mind what was said in debates in the other place. Paragraph 3 of the new schedule replaces paragraphs (c) and (d) of Clause 23(6). The Committee will have seen that the amendment limits the range of functions that the assembly can be given in England to those related to watery matters such as rivers, water courses, water supply and land drainage. It makes clear that the assembly can be given functions only in parts of England that adjoin Wales and only if the assembly is given the equivalent function for the whole or part of Wales. This is a narrowing compared to Clause 23(6)(c) as it presently is.
Paragraph 3 of the new schedule makes clear that the assembly can be given functions in respect of any cross-border body rather than those mentioned in Clause 23(6)(d). This is to ensure that there is no doubt about the ability of the transfer order to confer functions on the assembly in respect of bodies as diverse as the Environment Agency, Audit Commission, Intervention Board and the North West and North Wales Sea Fisheries Committee, to give some examples; as well as undertakers such as Dwr Cymru.
The Bill contains appropriate mechanisms to reflect the fact that, while the assembly may be given functions in parts of England, it will not be elected by people who live there. These mechanisms will not be affected.
The first point I would make is that Parliament has to approve the transfer order before it takes effect. All Members of this House and of the other place will be able to have their say.
We accept that it is important for the necessary accountability arrangements in Parliament to exist in those limited cases where the assembly is exercising functions in parts of England. That is why Clause 45(5) of the Bill ensures that when the assembly makes secondary legislation applying to parts of England it will continue to be subject to the usual parliamentary procedures.
Paragraph 6 of the new schedule provides that in relation to assembly functions in an English border area—which may include secondary legislation and matters such as determinations or directions—the transfer order can require that the assembly should consult, or obtain the agreement of, a UK Government Minister before it exercises the function. The transfer order will in due course set out our proposals for the use of this power.
In developing these proposals it has become apparent that there are a limited number of functions which the assembly will exercise in Wales but whose principal effect may be felt in England. That could, in effect, have a serious adverse impact on water resources, water supply or the quality of water in England. Those relate to abstractions from, and discharges into, rivers that cross the border. We have thought carefully about this and decided that, to recognise the interests of people living in England who may be affected by the assembly's decisions in Wales, there should be a limited override power for the Secretary of State to intervene and to take certain decisions in place of the assembly. This is provided for in paragraph 5 of the new schedule. The override power can be applied to functions in parts of two named Acts only. The transfer order will set out our proposals in due course for the precise cases where the override power will be available. This question was pre-figured by the intervention of the noble Lord, Lord Roberts of Conwy.
Paragraph 7 of the new schedule provides that in determining a formula for how much housing revenue account subsidy local authorities in Wales should receive, the transfer order can require the assembly to obtain the agreement of the Secretary of State for Social Security in relation to the rent rebate element of the subsidy formula. That is necessary because housing

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policy, which will be a matter for the assembly, and social security matters, which will continue to operate on a UK-wide basis, are locked together in a single provision. Making the exercise of these subsidy powers by the assembly subject to agreement will therefore legitimately safeguard UK-wide social security interests.
Section 80 of the Local Government and Housing Act 1989 empowers the Secretary of State to decide the amount of housing revenue account subsidy payable to local authorities. In Wales these powers are currently exercised by the Secretary of State for Wales and in England by the Secretary of State for the Environment, Transport and the Regions. There are different arrangements in Scotland and Northern Ireland.
This subsidy is a deficit subsidy to local authorities' housing revenue accounts which relate to council housing. In setting the subsidy formula, various assumptions are made about each authority's rent and other income to the housing revenue account and expenditure by way of management, maintenance, capital charges and other items. These assumptions are a powerful influence on the average rents set by local authorities and on their expenditure decisions.
The other major component of the subsidy formula is the cost of rent rebated to tenants who cannot afford their rent. Such rebates are a social security benefit. Nothing under Section 80 of the 1989 Act bears directly on an individual's entitlement to social security benefits. The rules of entitlement to benefit remain a matter for the Secretary of State for Social Security and we do not intend to disturb this. However, subsidy rules made under Section 80 can be as important as the rules on benefit entitlement in ensuring that housing benefit is delivered equitably and effectively.
A number of the rules within the subsidy determinations relate to rent rebates. These rules are intended to ensure that local authorities administer rent rebates properly and consistently with other housing benefit. They also ensure that rent rebates are not used to deliver a different level of support through the benefit system or to introduce differences in the social security regime from that which operates elsewhere in the UK.
It is important to maintain these safeguards for the wider social security system under the assembly. The mechanism introduced by this paragraph of the new schedule will allow the Secretary of State for Social Security to be satisfied that these interests have been recognised when the assembly makes its subsidy determinations. They will also ensure that the UK Government will be able to carry through any long-term reforms of the benefits system. The amendment is focused on the rent rebate element of the subsidy. We do not intend that the consent mechanism should be used to prevent the assembly from pursuing its legitimate policy interests in devolved matters such as rent policies or that it should encroach on housing policy more generally. Nor is it the intention to impose complete uniformity in the operation of the rent rebate element of the subsidy formula as between England and Wales. However, we do intend that the Secretary of State should be able to withhold consent where the assembly's actions or omissions risk distorting social security policy or
234
adversely affect the proper management and control of housing benefit. It is agreed that the assembly will fund any increases in rent rebate expenditure which are a consequence of its own policies.
In the longer term, we will consider providing for a separate rent rebate subsidy payable by a UK Minister similar to the current arrangements in Scotland. This will provide for a clear separation of responsibilities between social security matters taken forward on a UK basis and housing policy matters devolved to the assembly. This would remove the need for a consent mechanism.
However, such changes will need to be considered in the context of the Government's comprehensive spending review. This may reach conclusions that would entail amending the relevant provisions of the 1989 Act for both England and Wales. We would want to avoid cutting across the conclusions of that review by making changes to the 1989 Act only in respect of Wales. For that reason we are not making such amendments now.
The government amendments to Clauses 30 and 45 are consequential on the new schedule. They ensure that the assembly's subordinate legislation is subject to parliamentary procedures if it is made jointly with or contains provision made by a Minister; or if it relates to England; or if it relates to the functions or activities of a cross-border body outside Wales. The amendment to Clause 59 ensures that the definition of "Assembly general subordinate legislation" excludes any legislation that is subject to parliamentary procedures. Finally, there are four consequential amendments to the definitions in Clause 156.
I have spoken at length. The changes are substantial. They clarify which functions the assembly may be given in areas of England that adjoin Wales and they provide a range of mechanisms to ensure that the interests of people living in England are adequately protected. They will also ensure that the assembly's decisions on housing revenue account subsidy are consistent with the Government's policy of a common level of benefits across the United Kingdom. I beg to move.
6.30 p.m.
Lord Roberts of Conwy: We are grateful to the Minister for having given us advanced warning of the very extensive changes proposed in the cross-border areas; and very broad they are too, as we have just heard, involving the deletion of Clause 23 and its replacement in effect by a new schedule. The Government clearly took note of points raised in the other place and looked deeper and more closely at cross-border issues. That has resulted in a sharper focus on the functional areas, including rivers, water courses, water supply and drainage. That is certainly an improvement on what was there previously, in particular in Clause 23(6)(c).
I note that the Government intend to retain the provisions in Clause 45(5), which requires that any assembly subordinate legislation applying to English border areas is to be subject to parliamentary procedure and that assembly functions in such areas or in respect of cross-border bodies may be exercised subject to

235
consultation or with the agreement of a Minister of the Crown. Our amendments to Clause 23, as it then stood, Amendments Nos. 80 and 81, were more prescriptive and required the consent of the English Minister rather than consultation. Perhaps the Minister may wish to consider those amendments again. They might help to avoid cross-border problems in years to come.
Am I right in thinking that there is as yet no guarantee that a transfer order would require the assembly to consult with or seek the approval of Ministers before acting in England? If that is the position, these provisions are somewhat inimical to democracy. People in England could be seriously affected by the assembly and yet, because they do not elect representatives to that body, they would have no way of seeking redress. Such arrangements might result in conflict between England and Wales. I should be grateful to the Minister for some assurance and clarification on that point.
We appreciate the fact that the Government have seen fit to include an override power for the Secretary of State to intervene on behalf of those living in England who may be adversely affected by the assembly's decisions. That is a wise precaution. However, it reads oddly to a person like myself living in Wales because the implication is that the assembly can do what it likes with "our water", "our water resources", and so on; we shall just have to endure it; the Secretary of State will not be able to intervene on our behalf.
As the Minister outlined, the new schedule incorporates provisions to ensure that the assembly's exercise of its housing responsibilities in relation to the calculation of the housing revenue account subsidy is subject to the agreement of the Secretary of State. That part of the schedule is very prescriptive. The assembly does not have much choice about accepting the formula. It has to. While all that is perfectly understandable, what worries me is the Minister's admission in his letter that the need for the amendment was identified only recently. It makes one wonder just how many more problematic areas remain to be discovered.
I should be grateful to the Minister for an assurance that English MPs receiving complaints from constituents about actions of the assembly can approach the appropriate Minister in England and that he will then get a response from the executive of the assembly.
The Earl of Balfour: Perhaps I may ask the Minister to look at paragraph 5 of the new schedule. It is a long time since I have been in North Wales but I know that Manchester used to be supplied with most of its water from reservoirs in north Wales. I would imagine that part of the purpose of the amendment is to cover the cross-border functions in that case. Furthermore, although I may have misheard, I am not sure that the Minister made any comment on Amendment No. 196B, which stands in the name of my noble friends Lord Stanley and Lord Courtown.
Lord Williams of Mostyn: I rise simply to help and not to be discourteous. I did say that I would respond at
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the end when I had heard what the noble Lord, Lord Stanley of Alderley, had said, rather than presuming to answer him before he had said it.
The Earl of Balfour: I am grateful to the Minister. I just wanted to say that I feel that Amendment No. 196B is extremely sensible.
Lord Stanley of Alderley: I think I caused some trouble here because I thought that there was an amendment before mine. However, I have just been informed that there is not.
My amendment is Amendment No. 196B. It is intended to suggest an answer to the position of farmers whose agricultural holdings straddle the border between England and Wales. Giving the assembly power to make regulations which apply in Wales could well result, over a period of time, in those farmers facing two quite different sets of regulations for different parts of their farms. It would clearly be very difficult for the farmer to comply with two sets of regulations. For example, regulations relating to the protection of hedgerows, a matter which is certainly engraved on my heart from the previous Session, could differ as between Wales and England. The hedge in question might well run over the border.
A possible solution to this problem is to give farmers in that position the right to make an election as to which set of agricultural or environmental regulations they wished to apply to their business. That certainly applies to husband and wife under the Income and Corporation Taxes Act 1988. A right to such an election also applies in relation to the IACS scheme for farmers who farm on the border between England and Wales. As with those farmers, it would not be fair for an election, once made, to be binding for ever as conditions may change. They should therefore have the right, as husband and wife do, to make a fresh election after a period of perhaps one or two years. The Government have just considered the position of border area farmers. Does the Minister agree that they might face peculiar difficulties that could result from different legislation and different orders? What do the Government think is an appropriate remedy if mine is too greedy? I want to be in the same position as the Scots. I should like to choose whichever suits me best.
Lord Williams of Mostyn: I shall respond accordingly to Amendments Nos. 80 and 81 and also to Amendment No. 196B, which was spoken to by the noble Lord, Lord Stanley. The effect in practice of Amendments Nos. 80 and 81 would be that any function of the assembly with respect to a cross-border body or cross-border area could be exercised only with the agreement of a Minister of the Crown.
Under Clause 45, any assembly subordinate legislation that applies to English border areas will be subject to parliamentary procedures here in Westminster. The question is whether other executive functions in respect of such areas—of the kind the noble Lord, Lord Roberts of Conwy, had in mind—should be subject to ministerial agreement, given that the assembly will not be elected by or accountable to those who live in England. The answer is that it will depend on the

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detail of the functions that the assembly will have in English border areas. We have not reached final conclusions about that.
It may be that the difference between us is that we do not believe there should be a blanket requirement for every assembly function in England to be subject to ministerial agreement. There may be some functions where another approach—perhaps a requirement for consultation—would be more appropriate. The drafting of the Bill provides a menu of choices in the transfer order and we believe that that is the best way forward. But it is not always possible to find an immediately acceptable solution to all situations which may arise. If the noble Lord or any other Member of the Committee has any specific suggestions for assembly functions which should be subject to a requirement for ministerial agreement as opposed to consultation, we are more than willing to consider them. The point of detail which the noble Lord, Lord Roberts of Conwy, made about an English person wanting parliamentary redress through his or her Member of Parliament is one of those questions that needs further scrutiny. I am obliged to him for raising it.
We cannot accept that every assembly function should be subject to ministerial agreement. For instance, the Environment Agency is a cross-border body. One effect of the noble Lord's amendment would be that a direction by the assembly to the Environment Agency about its operations in Anglesey or Pembrokeshire would then have to be subject to ministerial agreement. I do not believe that anyone would consider that the proper way forward. That is one example of why I believe that our approach is a commonsense one and that we need to tease out more detail. I repeat that I am more than happy to have any proposals put forward in time for our future discussions.
The noble Lord, Lord Stanley, with his Amendment No. 196B, would allow owners of agricultural holdings—I believe the proper word is "business"—which consist of land on both sides of the border, to opt in and out where such legislation might be different in Wales from that in England. I gave earlier examples of the Moorland (Livestock Extensification) (Wales) Regulations 1995 and the Rural Development Grants (Agriculture) (Wales) Regulations 1996 where that position presently obtains. I take the point made about land rather than the operation of vehicles or livestock.
There are a few cases where a single farm lies physically on the border—apparently, there are not many. But if one looks at the small print of the amendment tabled by the noble Lord, Lord Stanley of Alderley, it refers to,
"agricultural holdings with land partly in Wales and partly in England and which are run as a single business".
That is an extremely ingenious formulation which I shall take a little further. It would be possible for someone who farms in Anglesey, for example, to have a large land holding in East Anglia. He would then be able to opt—the noble Lord has come clean—as often as every three years for the most advantageous financial consequences. I was not born yesterday. I appreciate that the noble Lord is looking for a formula which meets legitimate concerns, but with the dagger of the
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Chancellor of the Exchequer firmly pointed at my back, I believe that that is going much too far for any reasonable solution.
I believe that it would be what is called "a perverse incentive" to start buying land on the other side of the border in order to cherry pick in that way. It is not entirely dissimilar to the illustrations given by the noble Lord, Lord Molyneaux, in the context of the Republic of Ireland and Northern Ireland. However, it is a fair point that we do not want to burden businesses, whether agricultural or others.
Clause 66 is useful. It provides a very good structural, in-built discipline because it requires the assembly to carry out regulatory appraisals of subordinate legislation so that costs and benefits can be assessed and taken into account. I am not putting on one side the points which the noble Lord made. We believe that businesses, whether agricultural or otherwise, which have land on both sides of the border ought to be able to make their full contribution to those appraisals. That is a useful scheme. I recognise that quite often when legislation is passed problems arise subsequently. The scheme in the Bill is a good one. If it becomes law I hope that it will go a reasonable way towards meeting the noble Lord's points.
The question was raised by the noble Earl, Lord Balfour, as to whether the Secretary of State would be able to intervene to allow a new reservoir to be built in Wales which would serve England. I hope that I have his question correctly. Paragraph 5 of the new schedule would not allow the Secretary of State to intervene for a new reservoir to be built in Wales to serve England. The reason for that is that the compulsory purchase and compulsory works powers which would be needed are in Part VI of the Water Industry Act 1991. The override power cannot be used in relation to any functions in that Act. Obviously, if Parliament wished to enact primary legislation it would be open to Parliament to do so. If the noble Earl has any further particular matters of concern within that general area then, as always, I shall be happy to respond in writing in due course.
The Earl of Balfour: I am much obliged.
On Question, amendment agreed to.
6.45 p.m.
On Question, Whether Clause 22, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: As has been pointed out, Clause 22 is the crux of the Bill. The first point deals with the transfer of functions. I believe that many Members of the Committee will find it convenient to know what functions are at present exercised by the Secretary of State and which are not being transferred. Perhaps the noble Lord will consider that and see what can be done about it. I believe that I am pressing my luck somewhat. It would be helpful to know what functions performed by other Ministers in relation to Wales are or are not being transferred.

239
The second point I wish to raise is this. It may be that I understood erroneously from the discussions on the referendum Bill that power was to be transferred over secondary legislation where the primary legislation extends to Wales. There are a number of indications in the Bill that the assembly is to deal with secondary legislation. I refer to Clauses 45, 59 and 67, and I believe that there are a number of others which apply. If the assembly has jurisdiction over all secondary legislation as far as it extends to Wales, I would have expected that to be set out specifically in Clause 22.
Lord Williams of Mostyn: I believe that the first part of the noble and learned Lord's questions were raised by the noble Lord, Lord Dixon-Smith, who said that he would welcome a plain man's guide to the kind of matters to which he referred. I said in answer to the noble Lord that it was an idea with some merit and I promised to look at it. I make the same response in answer to the noble and learned Lord, Lord Simon of Glaisdale, because it seems to me that that kind of clarification, almost by way of a tick list, is likely to be useful. I shall write to the noble and learned Lord on that subject.
On the broader question, if subordinate legislation within the assembly is to have an effect on England, that will be subject to the Westminster parliamentary process. Secondary legislation in respect of Wales is for the assembly. I take the noble and learned Lord's point—he is a constitutional purist—that some reference to that ought to be made in the Bill. I shall reflect on that and write to the noble and learned Lord as soon as I possibly can. It may not be tomorrow or the day after because we shall be engaged in Committee here, but I shall certainly write to him on both matters as soon as I can.
Lord Simon of Glaisdale: I thank the noble Lord on both counts.
Clause 22, as amended, agreed to.
[Amendment No. 67 not moved.]
Schedule 2 [Fields in which functions are to be transferred by first Order in Council]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 68:
Page 81, line 18, leave out ("Agriculture,").
The noble Lord said: Schedule 2 lists the 18 fields in which functions are to be transferred by the first Order in Council. We have that order before us in draft form. We have sought to amend the first field listed, which relates to,
"Agriculture, forestry, fisheries and food",
by removing "agriculture" simply because it was not at all clear to us, or to others, how the Government's responsibilities for agriculture were to be carried out. In a sense, this is therefore a probing amendment.
Shortly before Second Reading, NFU Wales sent a letter to Welsh Peers, signed by its director, Mr. W.J. Goldsworthy, from which I now quote briefly:
"Although the Government proposes to devolve many operational aspects of agriculture, the Secretary of State has emphasized that important aspects of agriculture will not be devolved, including the
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vital matter of the reform of the CAP where it is envisaged that the Minister of Agriculture will continue to take the lead. He has stated that there will be representation from the Assembly in the UK delegation to EU negotiations. It is not clear, however, how this arrangement would operate in practice".
Those were the words of NFU Wales, as represented to us by Mr. W.J. Goldsworthy, and I am bound to say that I agree very much with the substance of his last sentence because I am not clear about just how that arrangement will work in relation to Brussels.
The noble and learned Lord the Solicitor-General threw some light on the matter in the general context of the United Kingdom's relations with the European Union in his speech at the end of our Second Reading debate. He said:
"Where appropriate, assembly secretaries, as well as officials, will have a role to play in delegations to the Council of Ministers, as agreed by the UK Minister leading those negotiations".
As well as referring to taking part
"in relevant negotiations on policy at the Council of Ministers",
the noble and learned Lord said that
"Assembly secretaries will be able, subject to the agreement of the lead UK Minister, to speak on behalf of the UK in relevant negotiations in Brussels".—[Official Report, 21/4/98; col. 1130.]
That all sounded fine at the time—until we began to consider the practical realities. Agricultural issues that affect only Wales are practically non-existent. So, the reality of assembly participation in European Union affairs is likely to be very different from the theoretical promise made by the noble and learned Lord the Solicitor-General whom I am glad to see in his place.
There are very difficult years ahead for British farming, years of tricky negotiations in Brussels over Agenda 2000 and on the future of agriculture. Wales at the moment has a much weakened industry, which had its income almost halved last year compared with the year before. There is deep concern, which has been echoed in this Chamber, not only about the future of farming as such, but about the impact of its decline on rural communities. That concern has been expressed repeatedly by my noble friends, and in particular by my noble friend Lord Stanley of Alderley.
As Mr. Goldsworthy said in his letter to us:
"Just before the referendum last September ministers assured farmers that a Welsh Assembly will benefit rural communities".
The NFU welcomed that pledge, but a lack of clarity persists about how that benefit is to be achieved and about what devolution will mean in practice for farming.
Perhaps I may quote Mr. Goldsworthy's letter just once more:
"It appears that some decisions on devolving agriculture have yet to be taken, notably on food safety and animal health matters".
We heard about that earlier. Mr. Goldsworthy continues:
"Whilst the Scottish Parliament will have the power to enact its own food safety legislation which may lead to different laws north of the border, does the Government envisage different secondary legislation on these important matters as between England and Wales, or identical regimes?"
I think that we have had the answer to that question, but there still remains the issue of how the subject of agriculture will be dealt with by the assembly.
The NFU has raised a number of other pertinent issues, but they are more closely related to other clauses to which we shall come in due course. In this discussion, I believe that the Committee would like to hear a fairly detailed account of how it is proposed to deal with agriculture under the scheme of devolution proposed, bearing in mind its current parlous state and the momentous changes proposed at European Union level.
I have also tabled Amendments Nos. 77, 78 and 79, relating to Clause 23 which I understand the Government are to withdraw in its entirety. Therefore, I do not see much point in speaking to those amendments. I beg to move Amendment No. 68.
7 p.m.
Lord Elis-Thomas: I am grateful to the noble Lord, Lord Roberts, for moving this amendment and for referring particularly to agriculture, to which I shall come in a moment. Grouped with Amendment No. 68 are Amendments Nos. 69, 70, 72 and 73 to 76 which stand in my name. I am pleased to have next to me my noble friend and fellow former party leader on the Cross Benches, the noble Lord, Lord Molyneaux, who can be entrusted to speak to my amendment, Amendment No. 70, on British-lrish issues as they relate to the assembly.
I want to introduce this series of amendments by emphasising what I take to be the object of Schedule 2, which is to name—quite literally—the fields in which functions are to be transferred. In earlier debates, the question of "fields" was given almost a literal definition. I understand that this schedule indicates areas rather than specific functions. It is therefore not surprising that there is not absolute clarity.
During the latter part of the Recess, I read with fascination the transfer order and marvelled at the work of the officials who have combed through all the pieces of legislation relevant to the current functions of the Welsh Office. On that basis, I believe that even potential Welsh assembly members might benefit from a lay-Welshperson's guide to the current functions of the Welsh Office and to what might be the assembly's forthcoming functions. It seems to me that the assembly may spend quite some time trying to find out just what it is able to do and what its competences are in a whole series of policy areas. That is why I have tabled a series of amendments on other fields which are not currently listed.
I believe that an ideal case for transfer is consumer protection. That is an area which is generally administered by local authorities within Wales. In any event, most consumer protection legislation falls within the framework of European legislation. When the Front Bench opposite waxed eloquently about legal conflicts or disagreements between the United Kingdom and the national assembly in Cardiff it occurred to me that it had forgotten that whole areas of domestic policy, particularly in the environmental, public health and consumer protection fields and a host of other matters, already fall within European Union regulation. These areas are subject to directives and legal instruments of the European Union to which the United Kingdom Government and the national assembly must pay equal
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regard. I believe that consumer protection would be a subject for transfer, and I should like to hear from the Minister why it does not appear in the first draft transfer order.
I turn now to my favourite subject of railways. The particular evidence that I produce is my Rail Rover valid until 10th June and issued at Bangor, Gwynedd. It allows me to travel the length and breadth of Wales. As Members of the Committee are aware, to travel the length and breadth of Wales one must go along the beautiful Marches. One is continually reminded that the borders of Wales have been open for a thousand years. In my view there was no reason to tear up the north-south communication on the west coast either. I believe that if any subject is appropriate for joint action between the national assembly and a Minister of the Crown in England it is the railway network. I shall not spend time, although I could, on the quality of the west coast track or the North Wales connection to Holyhead, at any rate not this evening. Noble Lords should not tempt me. I wish, however, to register one protest about the failure to include railways in the transfer order; similarly, inland waterways, as referred to in my Amendment No. 72. These, like other watercourses, traverse the border. I refer to the beautiful Llangollen Canal and so on. These are very appropriate subjects for immediate transfer.
The police, prisons and probation service are referred to in Amendment No. 73. This is even more probing. I shall not speak about the particular difficulties of Parc. I know that the Minister has those Home Office interests very much at heart. But the administration of the probation service and the police service in Wales appears to be a suitable candidate for effective transfer. Those services are already administered at a Wales level.
In case the noble Lord, Lord Stanley of Alderley, believes that I was a little rough with him earlier in relation to his amendment dealing with override powers, I totally support his Amendments Nos. 74 and 75 on rural affairs and rural regeneration. I link them with my amendment dealing with sustainable development. That should permeate the whole of the assembly's work. We shall come to that matter in greater detail later. It is important to flag up that we view sustainable development as a subject area in its own right and not as an add-on.
How does the Minister see the assembly progressing requests for further fields of transfer? I believe that there is a case for the assembly having an input into its own specific powers. It may be able to request further transfers to be considered by government by order according to Clause 22, and particularly Schedule 2.
I express disagreement with what I perceive to be the arguments underlying Amendment No. 71. Speaking as a member of the Standing Committee which considered the Environmental Protection Act 1990, I believe that the arrangements arrived at between the conservation agencies in England, Scotland and Wales have worked well. I am disappointed that this subject should be reopened. No doubt the CCW has a view on this matter. I look forward to the Minister informing the Committee

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of that view. I believe that the Countryside Council has worked admirably as a countryside agency combining habitat concerns and national park and access issues. Of course, it will be accountable to the assembly but it is also a partner in the UK-European wide statutory conservation family. I do not want to see anything done to weaken that partnership. The JNCC is a body in the ownership of the various countryside agencies. I believe that that arrangement should remain under the assembly.
As to the agricultural issues raised so clearly by the noble Lord, Lord Roberts of Conwy, it is essential that the assembly has an input into the debate on the future of the CAP. I fail to understand why the noble Lord, who lives in the most attractive valley in Wales, Conwy, and in sight of the most striking mountain range in Wales, seeks to argue that somehow there are issues of Welsh agriculture that are separate from UK agriculture or European agriculture. Surely, the Welsh assembly will be able to scrutinise all potential changes in Agenda 2000 and express a view. That view will be part of the overall UK position as it will be part of the inter-regional debate within Europe concerning mountain regions. Does the noble Lord believe that I am answering for the Government? I seek to help him. These matters should not be subject to division between us. Agricultural policy is borderless. For those reasons it is essential that there should be an input from mountain regions such as Wales into the whole European debate on the CAP. The assembly can provide that directly in a way that is complementary to anything that may be said at UK level. I am pleased to see that agriculture is to be transferred as a subject. I am certain that relationships can be worked out to ensure that the assembly has a strong voice to represent the NFU, the FUW, CLA and all the other agricultural bodies in Wales.
Lord Moran: I should like to say a few words about Amendment No. 71 which stands in my name and those of my noble friend Lord Chorley, the noble Baroness, Lady Nicol, and my noble and gallant friend Lord Carver. Essentially, it is a probing amendment. We are anxious that there should continue to be in the United Kingdom a common approach to nature conservation. It would be helpful to hear from the Minister precisely how that will be achieved under the Bill. We should also like to be reassured that the present arrangements, worked out with such care eight years ago, cannot be upset without the full consent of Parliament.
Nine years ago we began considering in this House the implications of the previous government's decision, announced on 11th July 1989, to break up the Nature Conservancy Council into three autonomous country agencies. Four months later the government, in the face of strong criticism at the apparent lack of thought given to the scientific base of nature conservation, announced that these bodies would be required to form a joint committee to provide advice about nature conservation with a Great Britain or international dimension and to establish common standards on these matters.
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The Environmental Protection Bill had started its progress through Parliament. The Select Committee on Science and Technology established a sub-committee to look into this matter. Its chairman was my noble and gallant friend Lord Carver who has put his name to this amendment but who, unfortunately, cannot be here tonight as he has to be in Strasbourg. The noble Baroness, Lady Nicol, and I were members of that sub-committee. I was co-opted as someone who lived in Wales. The Carver Committee reported in March 1990. I wish to quote three brief sections from the sub-committee's opinion. First, in paragraph 3.5 we said:
"Nature conservation needs one scientific base. The Committee reject arguments that the United Kingdom can be split ecologically into separate parts for England, Scotland and Wales. The evidence clearly supports the view that the United Kingdom is a biogeographical continuum … Although there are obvious differences between parts of the British Isles and a few unique characteristics of the north and south, these differences are less significant than the common factors. Most habitats, most flora and fauna and most geological features are to be found in more than one country of the British Isles, or in the sea which surrounds them all. Moreover there is only one science underlying nature conservation".
In paragraph 3.17 we said that,
"it would be very damaging if, in improving the Scottish, Welsh and English perspectives on nature conservation, the broader United Kingdom perspective were lost. Witnesses repeatedly demonstrated that a narrower, more localised, perspective can distort how the overall interests of nature conservation are perceived, especially in the perpetual tussle between conservation and development".
Finally, in two key recommendations we made in our summary of conclusions we said, first, in paragraph 4.4.:
"Devolution must not become disintegration. The new structure must be scientifically effective at home and internationally. A broad United Kingdom perspective must be preserved. The United Kingdom's commitment to nature conservation must be unimpaired".
In paragraph 4.5 we stated:
"The Joint Committee should be the means through which the country councils work together and it should be strong enough to drive forward the cause of nature conservation at a national level".
We set out in our report how we thought that the joint committee should operate and advised on its functions, membership and staffing. Most of our recommendations were accepted and were reflected in Section 7 of the Environmental Protection Act which received Royal Assent on 1st November 1990.
The special functions of the country agencies discharge through the JNCC and defined in Section 137 of the Environmental Protection Act are: the quinquennial review of the schedules of specially protected plants and animals other than birds; advice to Ministers on policies for or affecting nature conservation in Great Britain or elsewhere; dissemination of information to any person about nature conservation in Great Britain or elsewhere; the establishment of common standards throughout Great Britain for the monitoring of nature conservation for research into nature conservation, and the analysis of resulting information; and the undertaking or commissioning of research to support the above function.

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The JNCC was established in 1991. It has worked well, indeed better than was expected, under the distinguished and skilful chairmanship of the noble Earl, Lord Selborne, whom I am glad to see in his place, and its present chairman Sir Angus Stirling. It is supported by the chairmen of the three constituent councils which of course are now English Nature, Scottish Natural Heritage, and the Countryside Council for Wales.
One provision of the Environmental Protection Act (Section 131(5)) is that the Secretary of State is able to give the JNCC directions of a general or specific character with regard to the discharge of the committee's main functions. That is an important provision, although intended as a last resort, as it ensures that the JNCC duly carries out its functions in the way, and for the purpose, that the Act intended.
The present Bill has the potential to change matters in relation to the conduct of nature conservation by the JNCC. Clause 22 provides for the transfer to the national assembly for Wales of any of the functions exercisable by a Minister of the Crown in relation to Wales. The effect of such a transfer, were it to relate to the Secretary of State's powers of direction to the JNCC, could undermine the committee's role in giving advice in relation to nature conservation in Great Britain as a whole or internationally, or for the setting of common standards for research or monitoring or for the handling of the resultant information. In short, it could begin the unravelling of the procedure which this House was so instrumental in establishing in 1990—a procedure which was established with great thought and care. It is difficult to see how such a power of direction, if applied to the JNCC, would not impact on Great Britain as a whole and not just Wales. At the very least, it could create distortions and difficulties with which it would be difficult to work.
The purpose of the amendment is to safeguard the future operation of nature conservation in the UK at the national and international level, by exempting the functions carried out by Ministers of the Crown, in relation to the work of the JNCC, from the possibility of transfer to the assembly.
I recognise that that may be a theoretical risk only. In the seven years of the JNCC's existence, the Secretary of State has not used the power given to him in Section 131(5) of the Environmental Protection Act. We want to know how the present arrangements can be preserved and secured under devolution. I am, incidentally, puzzled about the interaction of Clauses 22 and 23. Clause 22 provides for an Order in Council to direct a Crown Minister to exercise his functions in relation to Wales to be exercisable concurrently by the assembly, or exercisable subject to the consent or approval of, or after consultation with, the assembly.
Clause 23(6)(c) provides that any function exercisable by a Minister of the Crown in relation to a cross-border area—that is, an area which includes a part of but not the whole of England as well as the whole or a part of Wales, shall be regarded for the purposes of Clause 22 as exercisable by the Minister in relation to Wales. It appears that the scope of Clause 22 is not confined to
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the matters listed in Clause 23(6), which means that any function of a Crown Minister in relation to Wales could be transferred to the assembly.
If the words "in relation to Wales" were to be defined by the matters listed in Clause 23(6) then the functions of the Minister as regards the JNCC could be implicated by reason that some of the JNCC's functions—for example, advice to Ministers—could relate to only part of England as well as Wales, and therefore come within the definition of a "cross-border area". The JNCC's functions relate also to the sea both within and outside territorial limits, and that is included by Clause 23(6)(b).
I should be grateful for clarification by the Minister of the way in which those clauses are intended to work. I have given him notice that I would ask about this matter.
7.15 p.m.
Lord Molyneaux of Killead: I am happy to support my noble friend Lord Elis-Thomas, especially in his plea for the devolution to the new assembly in Wales of all those matters which quite properly would appear to the general public to come within its area of responsibility, because if that is not done, and certain vital powers affecting Wales only are withheld from the assembly, the general public, if they are anything like the general public of Northern Ireland—Northern Ireland testified recently to this—will blame their own elected representatives for the sins of commission or omission by the sovereign Parliament.
My noble friend has a strong case in advocating that where it is safe within the integrity of the UK to devolve to the new assembly in Wales all those matters which are, after all, of real concern to the people who will elect the new assembly, even if that assembly is going to have only about half the membership of the Northern Ireland assembly, given that its population is probably more than twice ours in Northern Ireland, it should do so.
I have no option but to support Amendment No. 70. My authority for so doing is to be found in what has become known as the Belfast Agreement, which we are now told has the status of the law of the Medes and the Persians—unalterable and all the rest of it. The precise reference is to be found under strand three of that document. Paragraph 2 provides for membership of the council of the isles for devolved institutions in Northern Ireland, in Scotland, in Wales, and, if appropriate, I suppose, in London. One can hardly imagine that London would leave the UK, but one never knows in these days of rapid change and mass hysteria what lies ahead of us. We should not forget the Isle of Man and the Channel Islands, and, I suppose, if Atlantis were to resurface that might come into it too.
Amendment No. 70 is, in a way, a necessary act of reciprocity, because without it there could be an element of doubt in the minds of the 71 per cent. of the Northern Ireland electorate who voted recently, as to whether the people of Wales really wished to be associated with the people of Ireland. We have the opportunity tonight to provide that reassurance.
Lord Stanley of Alderley: Amendments Nos. 74 and 75 are grouped with the amendment. Before I speak to

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the amendment, perhaps I may emphasise the importance of the point made by the noble Lord, Lord Roberts, about the relationship between the assembly and Brussels. I shall study all the Minister's replies on this subject before Report stage, in particular the relationship between the assembly and Brussels to which I referred when I introduced my first amendment today.
Farmers need clarity on this vital matter. We cannot wait and see. I have to say this to the noble Lord, Lord Elis-Thomas. His simple and hopeful view that the assembly will find it easy to deal with Brussels may not prove to be quite correct. However, I can assure the noble Lord that a later amendment is intended to tackle the problem of geography, and the railways on the north coast of Wales.
I shall be most interested to hear the Minister's reply to the amendment of the noble Lord, Lord Moran. I remind the noble Lord, Lord Elis-Thomas, that it was the noble Lord, Lord Moran, who made the statement, not me.
Amendments Nos. 74 and 75 enable the Secretary of State to transfer to the assembly his functions over rural affairs and rural regeneration. It is important that that is done. The assembly will then be able to ensure that subject committees have responsibilities in those two fields; some may regard them as the same field. I shall be interested to hear the Government's view. I hope that the Minister will be able to assure me that rural affairs and rural regeneration will have a statutory place on the subject committees.
Baroness Nicol: I support Amendment No. 71 on which the noble Lord, Lord Moran, spoke so well. The noble Lord, Lord Elis-Thomas, is right. The arrangement with the Countryside Council for Wales has worked extremely well. It is to ensure that that happy arrangement can continue that we have put down Amendment No. 71. In the overall picture which is being painted of devolution, we are nervous that the needs of the Joint Nature Conservation Committee may be overlooked. We seek reassurance from the Minister.
The need for that committee is as great now as it was in 1991. I hope that my noble friend will take seriously the points made by the noble Lord, Lord Moran, in particular as regards the responsibilities of the Joint Nature Conservation Committee in advising Ministers on policies relating to nature conservation in Great Britain as a whole and internationally, and, perhaps most importantly, in establishing common standards for research, monitoring, data collection and analysis. Those matters must be dealt with. I hope that my noble friend will provide some answers.
Lord Prys-Davies: In support of Amendment No. 68, the noble Lord, Lord Roberts, drew heavily on a letter from the NFU Wales. I have a letter. My letter is dated 15th April; I am not sure whether we are referring to the same letter. However, in that letter I see no argument for omitting agriculture from Schedule 2. The NFU asks a number of questions, some of which are awkward. When the Minister replies, I shall be grateful if he will
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confirm that there is no reason why the assembly secretary cannot be a member of the UK representation at the Council of Ministers, and, although a member of the assembly, speak as a representative of the UK with the agreement of the lead department.
No reference has been made to the Farmers' Union of Wales. It is an important agricultural union in Wales. In its letter of 6th May it tells me that it would be "strongly opposed" to a move omitting agriculture from the Bill. That point should be on the record.
I wish briefly to refer to Amendment No. 70, tabled by the noble Lord, Lord Elis-Thomas. I believe that there is a positive case for ensuring that the Welsh assembly will have a representative on the Council of the Isles whenever that is established. There are three reasons why that is important. First, the council will be a permanent forum to discuss matters affecting the British Isles as a whole, and various parts of the British Isles. Secondly, it should provide a link between the two assemblies and the two, and possibly three, parliaments. That will be valuable. Thirdly, it would facilitate the co-ordination of policies where co-ordination is considered appropriate. That is a positive argument on why the assembly should have representation on the Council of the Isles.
The Earl of Selborne: I support the noble Lord, Lord Moran, on Amendment No. 71. I should like to put on record how enormously supportive of the concept of a joint committee was not only the Countryside Council for Wales but also the Welsh Office during the five years that I was chairman of the Joint Nature Conservation Committee. The noble Lord, Lord Moran, was a member of the Select Committee on Science and Technology, as was the noble Baroness, Lady Nicol. It was instrumental in drawing attention to what would have been a serious gap in the legislation. It was only through the intervention of that committee that the joint committee came on to the statute book. It is appropriate to have this probing amendment which ensures that a system which has worked well continues under the legislation we are considering today.
Lord Chorley: I wish to speak to Amendment No. 71 in the name of the noble Lord, Lord Moran. I am happy to follow the noble Earl, Lord Selborne, who had such a distinguished chairmanship of the JNCC. He really made it work.
We have been told many times today that in a Bill as complicated and far reaching as this we have to take many factors on trust. One is happy to do that, but at Committee stage of the Bill it is fair to probe exactly what is meant and what can happen. That is what the noble Lord's amendment seeks to do. There is little I need to add to what the noble Lord, Lord Moran, the noble Baroness, Lady Nicol, and the noble Earl, Lord Selborne, said. The crucial issues relate to those areas where nature does not recognise boundaries. It has been said that although normally inhabiting Wales, the red kite does not recognise the Welsh border. Therefore when we seek to establish common standards we need to have a UK-wide framework. That is the rationale of the JNCC.

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While the Bill is probably acceptable, it would be helpful to have a more knowledgeable and positive assurance from the Minister when he replies. It is to be hoped that that will settle the matter for the next 15 years.
Lord Geraint: I have lived on the land all my life and have been dependent on the agricultural industry. I have spoken to many young farmers during the past three or four months. The majority are in favour of the Welsh assembly discussing agriculture among other issues relevant to the people of Wales. I congratulate the Government for allowing debates on agriculture, forestry, fisheries and food in our parliament. I am delighted that the Government have conceded the requests of the young farmers living in rural Wales.
7.30 p.m.
The Earl of Balfour: I wish to make a special appeal in respect of rural affairs and farming. I am sure that my noble friend Lord Stanley will correct me if I am wrong, but the hill farmers—what is regarded within the CAP as the less favoured areas—are having a very difficult time. I am a farmer, but I am not in that bracket.
Secondly, I am surprised that Schedule 2 makes no mention of employment. Employment represents some of the difficulties that we are facing and if the Welsh assembly could take part of that on board it would be good for the country.
Lord Mackay of Ardbrecknish: Perhaps I may comment on the amendments which my noble friend Lord Roberts of Conwy did not speak to and give a view on each in turn. I begin with Amendment No. 71, which was spoken to and explained perfectly by the noble Lord, Lord Moran. The Minister should remove from his mind the idea he can resist the noble Earl, Lord Selby, the noble Baroness, Lady Nicol, and the noble Lord, Lord Moran, any better than could the Government in 1990 in relation to the Environmental Protection Act. The noble Lord made a formidable case, backed by his two formidable noble friends. I, too, look forward to what the Minister has to say. I shall look carefully for the read across to the Scotland Bill, which is soon to appear before us, to see whether environmental aspects regarding Scotland are being dealt with as I believe they should be.
As regards the amendment tabled by the noble Lord, Lord Elis-Thomas, I am not convinced about consumer protection. I accept his point that much consumer protection is EU-wide, but not all. Therefore, it is important to keep some of these issues on an all-UK basis. In the unified market of the United Kingdom, let alone that of Europe, it would be wrong to have the potential of running two different systems. I understand that Schedule 5, paragraph 6, to the Scotland Bill makes it clear that such powers are reserved to the United Kingdom Parliament. If the Minister is unable to confirm that, no doubt he will write to me if I am wrong.
I believe that railways and inland waterways criss-cross the border, and I do not believe that their separation is sensible. The assembly, like the Scottish parliament, will be able to debate whatever it wishes and
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no doubt communicate with the Government here when it is concerned about such issues. However, ministerial responsibility should rest in a unified way with the Westminster Government. I suppose that in that I am agreeing with the Government's position as regards this legislation. I would also include prisons, the police and the Probation Service, although the noble Lord, Lord Williams of Mostyn, having the Home Office brief on these issues, will be able to answer those questions much better than I can.
This Parliament will have the primary legislative powers on legal matters—the civil law and the criminal law—and therefore it is sensible that the police, prisons and the Probation Service should remain here. The Scottish position is quite different because all primary legislative powers will be devolved to the Scottish parliament.
I turn to the amendment tabled by my noble friend Lord Roberts of Conwy. Given that agriculture and forestry are to be devolved, I can see little objection to the amendments proposed. However, together with my noble friend, I have considerable reservations about devolving agriculture. I agree with noble Lords who said that it is important that agriculture should be the concern of the assembly. I fully appreciate that, but I worry about the EU aspect. I shall not develop that argument now because there will be a chance to do so later.
The world is a place where the guy with the Gatling gun controls things, and as regards agriculture, the guy with the Gatling gun will be in this Parliament. He will go to Brussels and conduct the negotiations. I believe that we are doing agriculture and fisheries a disservice in Scotland, Wales and possibly Northern Ireland if we attempt to separate them out in such a way that the Minister who negotiates and makes the decisions will not carry the can in the other place for the decisions he makes about Wales, Scotland and Northern Ireland. I have considerable difficulty with those issues, but they are not the subject of my discussion.
As the lawyers say, without prejudice to that position—if that is not what the lawyers say, no doubt they will tell me—I cannot see why, if agriculture and fisheries are devolved, rural affairs, rural regeneration and sustainable development, mentioned by the noble Lord, cannot also be devolved. There is an inconsistency about devolving some things and not devolving others which we shall come across quite a lot. I would rather we addressed agriculture and fisheries in a different way, but if we are to go down the road the Government suggest I can see no reason for them to resist my noble friend's amendment or those of the noble Lord, Lord Elis-Thomas. I shall deal with forestry in later amendments.
I have left the amendment about the Council for the Isles until last because it raises an entirely new and different point for us all. I understand that the council will encompass the UK—I presume in its capacity as the government of England, although I am not sure—the Republic of Ireland, Ulster, Scotland, the Isle of Man, Jersey, Guernsey and Wales. I put Wales last because we are discussing Wales tonight. The interesting point is that all of them are different.

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The Minister's department speaks for Jersey, Guernsey and the Isle of Man, which do not carry a devolved responsibility. I have recently returned from Guernsey, so I know that it is not devolved in the way that Scotland, Wales and Northern Ireland are to be devolved. The responsibility of the United Kingdom Government is external affairs and defence, not the internal arrangements of those countries. They are not devolved in the way in which we are looking at Ulster, Scotland and Wales; they fall somehow between the devolved position and the totally independent position of the Republic of Ireland.
I presume that the Welsh assembly will be sending a delegate or a delegation to that council, together with delegations or delegates from Guernsey, Jersey, the Isle of Man, Scotland, Northern Ireland and the UK. I presume that there will be English representatives from the UK. If that is the case, matters regarding the Council of the Isles as far as Wales is concerned should be delegated to the Welsh assembly. It would be totally illogical if they were not. If it is to be a proper Council of the Isles, with all those governments, despite their different constitutional arrangements, being represented on it, then the government of Wales—I prefer to think of them as that—should be able to attend with their own delegation from the assembly, taking their own line. Therefore, I am sure that the amendment tabled by the noble Lord, Lord Elis-Thomas, is right. I look forward to hearing a description of what the Council of the Isles will do. No doubt that will interest the noble Lord, Lord Molyneaux, just as much as it will interest me.
Lord Williams of Mostyn: We have discussed Amendments Nos. 68 to 76. The noble Lord, Lord Roberts of Conwy, made it plain that he would not be moving Amendments Nos. 77 to 79 because events have overtaken them. Therefore, the issue essentially relates to the functions which are to be transferred to the assembly.
The first group of amendments seeks by amending Schedule 2, to add to or to subtract from the functions which will transfer to the assembly. Perhaps I may indicate my understanding of what Schedule 2 does and does not do.
Clause 22(2) puts a duty on the Secretary of State for Wales to consider including in the initial transfer order appropriate functions which fall in each of the fields listed in Schedule 2. Without such a provision there would be nothing in the Bill to indicate the extent of the initial powers to be transferred to the assembly. Clause 22(2) and Schedule 2, taken together, reflect the policy that virtually all the functions now exercised by the Secretary of State for Wales should be included in the initial transfer order.
Therefore, adding new fields to the list in Schedule 2 would have the effect of requiring the Secretary of State to consider transferring functions in those other fields to the assembly. It would not require him to transfer any or all of them. If the additions were simply matters included in one of the broad fields already in Schedule 2, the amendment would have no effect at all. Conversely, removing a field from Schedule 2 does not
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mean that the transfer order under Clause 22 could not transfer functions in that field to the assembly. Schedule 2 does not constrain the ability of an order to transfer any ministerial function.
When introducing Amendment No. 68, the noble Lord, Lord Conwy, whose approach was echoed by the noble Lord, Lord Mackay of Ardbrecknish, proposed that the assembly should not have functions with respect to agriculture. We take a diametrically opposite view in that respect. I am bound to say that our view is that which was elucidated by the noble Lords, Lord Geraint and Lord Elis-Thomas.
As I indicated, Schedule 2 does not constrain the scope of a transfer order. Therefore, if the objective of Amendment No. 68 is to prevent the assembly having functions vis-à-vis agriculture, it will fail. We do not fundamentally understand why an assembly should not have devolved powers on agriculture in a country such as Wales where it is so important. Indeed, the noble Lord said that farmers are faced with difficult circumstances and that farm incomes have very seriously decreased. However, quite apart from that, it is economically and socially important right across Wales; and, indeed, culturally and linguistically. We believe that it is absolutely right that functions with respect to agricultural policy should, as far as possible, be subject to the democratic scrutiny and accountability of the assembly.
If we had an assembly without devolved powers on agriculture, I believe that that would simply hobble the assembly before it starts its work. I would anticipate—although these are matters for the assembly—that one of the very first tasks that assembly members will consider will be the setting out of a strategy for the next few years as regards agricultural policy within its own competence, domestically, in Wales.
When we devolve powers to the assembly, we do not wish to take away from it at or about its birth functions of such importance. The noble Earl, Lord Balfour, asked about employment. Employment, in the sense of the functions of the Employment Service, is not a function of the Secretary of State for Wales. But, of course, economic development is referred to in Schedule 2.
My noble friend Lord Prys-Davies inquired as to whether an assembly secretary could speak at European Council meetings. He is right to suppose that he or she could do so; any assembly secretary could speak at such a meeting and put forward what view had been agreed.
There were also specific questions about—
Lord Mackay of Ardbrecknish: I thank the Minister for giving way. Although this is perhaps not the time to mention it because we will deal with such matters later, I believe that the Minister will have to try to persuade some of us who have been to such meetings on many occasions—for example, on agriculture and fishing—that, at any time, anyone other than Ministers of member states sits round the table and leads in discussions for their country.
7.45 p.m.
Lord Williams of Mostyn: My noble friend Lord Prys-Davies asked whether or not it would be possible for an assembly secretary to speak at a European Union council. I believe that my answer was accurate. It would indeed be possible for him or her so to speak and attend such meetings.
There were specific questions about how the assembly is to organise itself, especially as regards agriculture. They are primarily decisions for the assembly to make. I cannot repeat too often that we do not wish to be prescriptive and dictatorial. We are trusting the assembly with new powers; we are trusting the electorate with their decisions; and it is for the assembly to develop organically through its standing orders and procedures and decide how it wants to carry out its business and how it wants to set its priorities.
The noble Lord, Lord Elis-Thomas, asked a particular question about how requests for further transfers of functions will be dealt with. It is open to the assembly at any time to make representations on any matter. I am happy to confirm that it could make requests for further transfers of functions. Of course, it would then be for the Government and Parliament of the day to decide how to respond to those requests.
There were many distinct questions about Europe. However, I believe that the noble Lord, Lord Mackay, is right to suggest that we probably ought to deal with such matters when we come to discuss Amendments Nos. 102, 103B and 103C.
The noble Lord, Lord Moran, and other noble Lords spent justifiable time on their concerns about Amendment No. 71, which refers to the "special functions" of the three nature conservancy councils discharged through the Joint Nature Conservation Committee (JNCC). The second draft of the transfer order indicates that we propose to transfer to the assembly the Secretary of State's power under Section 133 of the Environmental Protection Act 1990 to direct the Countryside Council for Wales to undertake those special functions in place of the JNCC. That is a reserve power in that the JNCC will continue to discharge its present range of functions unless or until the power of direction is used. Within the Department for the Environment, Transport and the Regions, the Secretary of State will retain the power of direction in respect of the Nature Conservancy Council for England and the Scottish Executive will inherit the power so far as it relates to the Nature Conservancy Council for Scotland.
We are discussing important questions. I have been able to see that the CCW has been in correspondence with the noble Lord who substantially took the burden of this area of the debate. Its view is that it would prefer responsibility for CCW to go to the national assembly. The CCW has come to that view after some thought because its letter is only dated with yesterday's date. The CCW makes the point, which I shall repeat for what it is worth, that the Secretary of State will be left without any expertise in this area and that,
"it will be far better for the national assembly also to have responsibility for the special functions and to share in an ongoing commitment to a common approach to nature conservation. Indeed,
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if the two special functions arc left with the Secretary of State this could reduce the sense of ongoing commitment on the part of the assembly who will give us in CCW our direction, budget and much else in the future".
I recognise the concerns that were so moderately put by the noble Lord and those who supported him. However, we believe that a good deal of the answer is to be found in the conclusion of the CCW as expressed in its letter.
There may have been a glitch about the prior notice that the noble Lord gave me. He said that he had written to me—and, of course, I accept that—about the duality that he detected as regards Clause 22 and the other clause—
Lord Moran: I am sorry to interrupt the Minister, but I should point out that I did not say that I wrote to him; indeed, I telephoned the Minister's private secretary.
Lord Williams of Mostyn: That is, perhaps, the answer. I have been trying to research a letter. The noble Lord is quite right. However, he did not say that he had telephoned. I regret to say that even my private office is being less than wholly perfect. As far as I am aware, that message did not come to me. Nevertheless, I shall research the matter overnight and hope to have an answer for the noble Lord by tomorrow. I have in fact been asking my officials to find a letter and have been met by indignant denials that any such letter was received. I am most grateful to the noble Lord for resolving the matter.
The amendments tabled in the name of the noble Lord, Lord Elis-Thomas, and the noble Lord, Lord Stanley, seek to add fields to Schedule 2. I have simply explained that, if such amendments were accepted, it would not mean that functions in those fields were obliged to be transferred. Reference was also made to consumer protection. The Secretary of State for Wales does not deal with trading standards or other aspects of consumer protection. Our scheme has been that it is powers which he has presently which are to be devolved to the assembly.
The noble Lord, Lord Mackay of Ardbrecknish, was right: taking the police, prisons and the Probation Service away from the Home Office, which deals with them so admirably, is not on the menu. We have no plans to change Home Office responsibilities in that area.
Amendment No. 70 refers to the Council of the Isles. I think that the nomenclature now has become the British-Irish Council. It is a dramatic idea and it offers the possibility of a consultative forum between different areas within the islands of Britain. I think that in principle it is a most attractive idea if it can be made to work.
Whether the national assembly wishes to take part in it and make it work is a matter for the assembly, as it will be a matter for the Manx legislature and the legislatures in Guernsey and Jersey. I returned from the Isle of Man yesterday where I discussed this among other issues. I visited Jersey and Guernsey a few days earlier. It is not appropriate to discuss legislation on the British-Irish Council in terms of this Bill. However, it

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appears to be appropriate to discuss virtually everything else in the discovered world in terms of it. If there is to be such legislation it ought to be discussed when that legislation is brought forward.
Amendment No. 72 refers to railways and inland waterways. The main statutory function that the Secretary of State exercises in relation to rail transport and inland waterways is in respect of freight facilities grants under Sections 139 and 140 of the Railways Act 1993. Those grants encourage the transfer of freight from road to either rail or inland waterways. These functions are more than adequately covered by the field of transport in Schedule 2. The only other functions that the Secretary of State has with respect to railways are incidental ones; for example on planning and non-domestic rating. The principal functions relating to the railways are within the remit of the Secretary of State for the Environment, Transport and the Regions. These should allow the railways to operate as an integrated network within a clear financing and regulatory regime set by him. The Government have no plans to alter that.
Those are the responses to the matters which have been raised. As I said, I have specifically not discussed those matters which were not raised because of our earlier decision with regard to Clause 23.
Lord Elis-Thomas: I express my disappointment at the decision not to transfer immediately all responsibility for railways. There are aspects of passenger transport as well as freight transport which will be of interest to the assembly and we shall want to return to the matter. I wish to respond positively to what the Minister said with regard to the Council of the Isles. I thank him for his remarks. I am certain the assembly will want to address that issue. It may not be appropriate to do so in this schedule but at some point during the Bill we may wish to return to the question of the relationship between Northern Ireland and the national assembly for Wales. Both assemblies will have much in common in terms of their functions.
As regards the arrangements for the JNCC and the views of CCW, I welcome what the Minister said. My concern with the probing amendment is that it might undermine the active role of the assembly, and in particular the role of the assembly secretary with responsibility for the environment and his officials who will take over the Welsh Office brief, as it were. It would be a mistake to leave with the Secretary of State some reserve powers in one area. I refer to the active environmental commitment which will have to be part of an assembly whose brief will be to promote sustainable development. I cannot believe that an assembly which will have such a duty placed upon it by statute will do anything to disrupt the positive relationship that has existed between CCW, JNCC and the existing Welsh Office. I am sure that is an undertaking that CCW has given. It is one that I am certain all of us in this Chamber who are concerned about the Welsh environment can support.
Lord Roberts of Conwy: When I introduced Amendment No. 68 I stressed that it was a probing
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amendment. I had hoped that we should be given a fairly full explanation of exactly how the devolution of agriculture would work in practice, but perhaps that was too much to hope for. I hoped also that we should be told precisely how the assembly will relate to Brussels in agricultural matters. I say with all due respect that I do not think the Minister answered the point made by my noble friend Lord Mackay of Ardbrecknish when he asked how it would be possible for an assembly secretary to speak at Brussels in negotiations. It is our understanding that only lead Ministers have ever spoken in such negotiations, as far as we are aware. They, of course, are part of a unitary government whereas that will not be the case with an assembly secretary. However, I shall not press the amendment.
Lord Moran: I express my gratitude to the Minister for his courteous and helpful reply. He is quite right that the Countryside Council for Wales wrote to me yesterday and stated that it would be far better for the national assembly also to have responsibility for the special functions and to share in an ongoing commitment to a common approach to nature conservation. That may be a fine aspiration and it is something that I believe we would all support, but whether it is a satisfactory arrangement with which to go forward I am not certain. I should like to think about it, to study carefully in Hansard what the Minister said in his reply and to consult with others on the question. That said, I shall not press my amendment.
Lord Roberts of Conwy: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 to 76 not moved.]
Schedule 2 agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 76A:
After Schedule 2, insert the following new schedule—

SCHEDULE
  TRANSFER ETC. OF FUNCTIONS: FURTHER PROVISIONS
    PART I

      FUNCTIONS TRANSFERABLE ETC.
      Existing and future functions
      1.—(1) Subject to sub-paragraph (2), an Order in Council under section 22 may make provision about any function of a Minister of the Crown (including a function conferred or imposed after the passing of this Act).
      (2) Such an Order in Council may not make provision about any function conferred or imposed by any provision of this Act except—

      (a) section 3(4),

      (b) section 37(5),

      (c) paragraph 16(9) of Schedule (Welsh Administration Ombudsman),

      (d) sections 127 to 144, and

      (e) Part VII so far as relating to the provisions specified in paragraphs (a) to (d).

      Functions relating to culture or the sea
      2. If and to the extent that any function is exercisable by a Minister of the Crown in relation to—

      (a) the Welsh language or any other aspect of Welsh culture, or

      (b) an area of the sea adjoining either the coast of Wales or an area of sea forming part of Wales,

      it shall be regarded for the purposes of section 22 as exercisable by the Minister in relation to Wales.

      Cross-border functions
      3.—(1) The power conferred by section 22 to make an Order in Council about a function so far as exercisable by a Minister of the Crown in relation to Wales includes (as well as power to make provision about a function so far as exercisable by a Minister of the Crown in relation to the whole or any part of Wales) power to make provision about a function so far as exercisable by a Minister of the Crown in relation to—

      (a) a cross-border body, or

      (b) (subject to sub-paragraph (3)), an English border area.

      (2) In this Act—
      "cross-border body" means any body (including a government department) or undertaker exercising functions, or carrying on activities, in or with respect to Wales (or any part of Wales) and anywhere else, and
      "English border area" means a part of England adjoining Wales (but not the whole of England).
      (3) An Order in Council under section 22 may only include provision about a function so far as exercisable by a Minister of the Crown in relation to an English border area if—

      (a) the function relates to water resources management, water supply, rivers or other watercourses, control of pollution of water resources, sewerage or land drainage, and

      (b) the Order in Council makes (or another such Order in Council has made) corresponding provision about the function so far as so exercisable in relation to a part of Wales adjoining England or the whole of Wales.

    PART II

      CONTINUING ROLE FOR TRANSFEROR ETC.
      Community obligations
      4. Any power of a Minister of the Crown to make subordinate legislation which has been transferred by an Order in Council under section 22 shall continue to be exercisable by the Minister of the Crown (as it would be had it not been transferred) for the purpose of—

      (a) implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Community Treaties to be exercised, or

      (b) dealing with matters arising out of or related to any such obligation or rights or the operation of section 2(1) of the European Communities Act 1972.

      Intervention in case of functions relating to water etc.
      5.—(1) Where it appears to the Secretary of State that the exercise of a relevant transferred environmental function (or the failure to exercise such a function) in any particular case might have a serious adverse impact on—

      (a) water resources,

      (b) water supply, or

      (c) the quality of water,

      in England, he may intervene under this paragraph in that case.
      (2) If the Secretary of State intervenes in a case under this paragraph—

      (a) he may in that case exercise the function concerned, and

      (b) that function shall not in that case be exercisable by the Assembly.

      (3) For the purposes of sub-paragraph (1) a function is a relevant transferred environmental function if it is a function—

      (a) under Part I of the Environmental Protection Act 1990, or

      (b) under Part II, III or VII of the Water Resources Act 1991,

      and it has been transferred to the Assembly by an Order in Council under section 22 which states that this paragraph is to apply in relation to it.
      (4) An intervention by the Secretary of State under this paragraph shall be made by giving notice to the Assembly.
      (5) The notice—

      (a) shall state the reason for the Secretary of State's intervention,

      (b) may make provision about the effect of any steps previously taken by the Assembly or any other person, and

      (c) may extend the time for the taking of any steps by the Secretary of State or any other person (even if the time for taking them would otherwise have expired before the notice is given).

      (6) Where the Secretary of State has made an intervention under this paragraph in a case he shall, in addition to the notice under sub-paragraph (4), give notice to—

      (a) any person who has previously been given notice of any steps taken, or proposed to be taken, in the case,

      (b) the Environment Agency (if concerned in the case), and

      (c) any water undertaker or sewerage undertaker concerned in the case.

      Agreement or consultation
      6. An Order in Council under section 22 which includes provision—

      (a) transferring to the Assembly any function so far as exercisable by a Minister of the Crown in relation to a cross-border body or an English border area, or

      (b) directing that any function shall be exercisable by the Assembly in relation to a cross-border body or an English border area concurrently with the Minister of the Crown by whom it is exercisable,

      may provide that (either generally or to such extent as may be specified in the Order in Council) the function may be exercised by the Assembly only with the agreement of, or after consultation with, a Minister of the Crown.
      7. If an Order in Council under section 22 includes provision transferring to the Assembly the function of determining a formula for the purposes of section 80 of the Local Government and Housing Act 1989 (calculation of Housing Revenue Account subsidy), the Order in Council may provide that the Assembly shall not exercise the function without the agreement of the Secretary of State to the inclusion in the formula of any variable framed (in whatever way) by reference to rent rebates.
      8. Where a function is exercisable by a Minister of the Crown only with the agreement of, or after consultation with, another Minister of the Crown—

      (a) if an Order in Council under section 22 transfers the function, it shall be exercisable by the Assembly free from that requirement unless the Order in Council provides otherwise, and

      (b) if an Order in Council under that section directs that the function shall be exercisable by the Assembly concurrently with the Minister of the Crown by whom it is exercisable, the Order in Council may provide that it shall be exercisable by the Assembly free from that requirement.

    PART III

      SUPPLEMENTARY
      Interpretation
      9. References in section 22 and this Schedule to a Minister of the Crown include references to—

      (a) two or more Ministers of the Crown acting jointly, and

      (b) an officer of a Minister of the Crown or of a government department,

      and, in relation to functions of such an officer, the references in section 22(1) and this Schedule to the Assembly include a member of the Assembly's staff.
      10. References in sections 22 to 26 and this Schedule to a Minister of the Crown include a member of the Scottish executive.
      Saving
      11. An Order in Council under section 22—

      (a) transferring a function exercisable by a Minister of the Crown, or

      (b) directing that a function shall be so exercisable only with the agreement of, or after consultation with, the Assembly,

      shall not affect the validity of anything done by or in relation to the Minister before the coming into force of the Order in Council.").
      The noble Lord said: I have already spoken to this amendment. I beg to move.
      On Question, amendment agreed to.
      Lord Hoyle: I beg to move that the House be resumed. In moving this Motion I suggest that the Committee stage begins again not before 8.55 p.m.
      Moved accordingly, and, on Question, Motion agreed to.
      House resumed.

      Pesticides Bill
      7.59 p.m.
      Lord Stone of Blackheath: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
      Moved, That the House do now resolve itself into Committee.—(Lord Stone of Blackheath.)
      On Question, Motion agreed to.
      House in Committee accordingly.
      [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
      Clause 1 [Regulation of pesticides]:
      [Amendment No. 1 not moved.]
      Clause 1 agreed to.
      Clause 2 [Enforcement of controls on pesticides]:
      Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 2:
      Page 2, line 35, after ("officer") insert ("reasonably").
      The noble Baroness said: This amendment would require a person to answer questions put by an officer only when that officer poses questions which he or she has considered it reasonable to ask.
      As presently framed, the test of what questions an officer thinks it appropriate to ask is entirely subjective. This Bill introduces a measure which represents an
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      invasion of privacy and a cutting down of the ordinary rights of the individual to answer questions or not. It is therefore important that Parliament should be ready to ensure that the reduction in civil liberties is restricted to what is necessary for the measure itself and no more.
      It could surely never be necessary for an officer to be entitled to ask questions which it was not, when considered objectively, reasonable to ask. It would be wrong for a person who declines to answer a question which is not a reasonable question to be exposed to the risk of prosecution for failing to answer such a question. I note that the power to take action springs from paragraph 10 of Schedule 2 to the 1985 Act. Perhaps I may place on record my gratitude to the Minister and his department for answering some questions that I posed at Second Reading with regard to the source of the legitimacy of proceedings against people who do not answer questions under that provision.
      I do not think that it would be reasonable to object to the insertion of the word "reasonably", as I propose, on the grounds that it might be difficult to define what is reasonable and what is not. That has sometimes been advanced as an argument against the insertion of the word "reasonable" in social security law. On this occasion I advance the view that it is reasonable to accept my amendment simply because the Bill already contains, at line 32 on page 2, the use of the word "reasonable". The Government have therefore already considered it an acceptable use of the word. In line 32, the word is used in the context of restricting the power of the officer to act, in that he or she must first have reasonable cause to believe that a person is able to give information which will assist him or her in carrying out the functions conferred under Part III of the 1985 Act.
      I would therefore argue that the use of the word "reasonably" is not in itself unreasonable in the context of my amendment. Indeed, if that safeguard were not inserted into the Bill, I would argue that the person being questioned would be put into an unreasonable position in being required to answer any questions, however unreasonable they might be, on pain of prosecution if he or she fails to answer. I beg to move.
      Lord Monson: I am every bit as concerned about civil liberties as the noble Baroness and her noble friends. I support the thrust of what she is trying to achieve in this amendment. However, it seems to me that if the word "reasonably" is inserted before the word "thinks", subjectivity creeps into the equation again. The noble Baroness believes that it makes the matter more objective. I suspect that it might not. The officer might think he was being reasonable but might be entirely wrong in that assumption. What the noble Baroness is trying to achieve would be better served if the word "reasonable" were to be inserted between "such" and "questions", so that the sub-paragraph would read: "to answer such reasonable questions as the officer thinks it appropriate to ask". Other noble Lords may disagree, but that is my feeling on the matter.
      Lord Kimball: I hope that the noble Lord will accept this amendment, or give some guarantee that at a later stage he will bring forward an appropriate adjustment.

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      While we are on the subject of reasonableness, perhaps I may say how much I and all of us appreciate the trouble taken by the noble Lord, Lord Donoughue, in clearing up the point about expenditure under the Bill. He sent an excellent letter. It was an example of how to deal with all Private Members' Bills which verge on imposing a burden of expenditure. In a spirit of reasonableness, I wish to thank him.
      Lord Stone of Blackheath: I thank the noble Lord, Lord Monson, for making a shrewd point. I also thank the noble Lord, Lord Kimball, for leaving out his reasonable amendment, and also for teaching me so much during the passage of this Bill.
      The amendment is not necessary. The Bill already requires an enforcement officer to be reasonable. He or she is already required, as stated in Clause 2 at line 32 of the Bill, to have reasonable cause. The courts can, and already do, decide whether enforcement action has been reasonable. Good judges are being retrained as we speak on this particular practice. A power to ask questions would be subject to the usual public law controls of relevance and reasonableness, and the issue of whether questioning has been reasonable or not could be taken into account in any prosecution for failing to answer questions. Answers given would not in any event be admissible in criminal proceedings against the person answering, or their spouse, except in a case of alleged perjury.
      Baroness Anelay of St Johns: I am grateful to those who have spoken. I take on board particularly the words of the noble Lord, Lord Monson, with regard to the importance of the positioning of the word if one is to retain objectivity and avoid subjectivity. I take to heart the noble Lord's comments that I may inadvertently have retained subjectivity by the way in which I have positioned the word "reasonably". On that basis alone, at this stage I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 3 and 4 not moved.]
      [Amendment No. 5 not moved.]
      Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 6:
      Page 3, leave out lines I to 5.
      The noble Baroness said: This amendment seeks to obtain clarification regarding the application of what might be called in shorthand the new Clause 2(2) powers of the Bill.
      I wish to begin by offering an apology to the Committee for taking some time over this matter. However, at Second Reading I attempted to obtain clarification in relation to this new power because there had been some confusion when the issue was discussed in the Commons. It appeared that Ministers in another place were not able fully to complement each other in what they said but seemed at odds with each other.
      Having raised the issue at Second Reading, I then received a letter from MAFF, for which I thank the Minister. It covered some of the points I raised at Second Reading. However, unfortunately, with regard to
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      the particular clarification of the new Clause 2(2) powers the letter caused further obfuscation rather than clarification. I therefore tabled an amendment to try to resolve the matter, and in a spirit of co-operation faxed through the entirety of my speaking notes on this amendment to MAFF yesterday. At 6.35 this evening I received a letter from MAFF in reply to those notes. It means, I am afraid, that I feel the need to put the whole issue on record: that is, the scenarios I proposed at Second Reading; the MAFF letter in response; my response; and the final MAFF letter. Only in that way will one be able to approach properly a resolution of what the Clause 2(2) powers may mean.
      The situation arises that under the Clause 2(2) powers somebody may for the first time be required to give information to an officer. In order to explain how that might affect individuals, I proposed three scenarios.
      In the first, I am the defendant. Throughout this process there has been a recalcitrant Mrs. Bloggs. I apologise to all Mrs. Bloggses throughout the country for appropriating that name. But first I am the defendant charged with storing pesticides, and I state in court that I have not stored them. As I understand it, this Bill prevents the prosecution from adducing my original statement as evidence against me in those proceedings. But if the prosecution wishes subsequently to prosecute me in separate proceedings for perjury, then it can use the first statement as evidence.
      In the second scenario I proposed, I am now a prosecution witness in the trial of Mrs. Bloggs, and again I lie and say that I have not stored the pesticides. My first statement could be brought into that case only if the prosecution wished to apply to treat me as a hostile witness by demonstrating that I had made a previous statement inconsistent with my oral evidence. It would be used as to my unreliability as a witness—but not against me as such because the proceedings would not be against me. But the prosecution could subsequently bring a charge of perjury against me and, as in the previous scenario, use the first statement in evidence against me in those proceedings.
      The third scenario is the only one that has been accepted in its entirety by the Government. The Committee will therefore be relieved to hear that after this they will hear no more of scenario three. In this scenario I am a witness for the defence in a prosecution case against Mrs. Bloggs. Again, I lie in court and say that I did not store the illegal pesticides. Again, the first statement can be adduced as evidence but only to demonstrate the unreliability of the oral evidence which I have given. It cannot be used against me because the proceedings are not against me, although again the prosecution could subsequently bring a case of perjury against me.
      The Minister wrote to me with regard to the first two scenarios. I must refer to the letter in detail in order to explain to the House why I believe the Government are still a little muddled in their thinking on this issue. The Minister's letter states:
      "In the first scenario, where the person who has made the statement appears as a defendant, the person admitting illegal storage and suspected of committing an offence would not be interviewed under the clause 2(2) procedure. The interview would

      263
      be conducted in line with the procedures set out in the Code of Practice for the detention, treatment and questioning of persons by police officers to the Police and Criminal Evidence Act 1984. Any confession evidence would then be admissible against the interviewee in court".
      The letter continues:
      "In the second scenario, where the person who made the statement appears as a prosecution witness, the prosecution would seek to avoid having to apply to treat the witness as hostile. For instance, they might ask the witness whether they made the earlier statement and seek to allow them to refresh their memory from the statement".
      I find great difficulty with both parts of the Minister's letter on those two scenarios. With regard to scenario one, the point is that the Clause 2(2) procedure can be used against any person whom the officer has reasonable cause to believe is able to give information which will assist him in carrying out the functions conferred by Part III of the Act. Such a person could include—indeed, must include—a potential defendant. That is the whole point of the provision. Accordingly, I would argue that the first scenario is correct.
      A defendant may well have admitted that he or she is storing illegal pesticides for Mrs. Bloggs in answer to the questioning by the officer under Clause 2(2). After all, the whole purpose of Clause 2(2) is that a person is required to answer the officer's questions or face a penalty for refusing to answer. But the PACE procedure, which I, as a magistrate, was accustomed to seeing invoked, would not arise until a later stage when a decision had been made to detain the person, presumably on the basis, inter alia, of his or her admission to the officer. Such a person would at that stage be interviewed in the normal way under PACE. Only if he or she repeated the admission in that interview could that confession be admissible against that person in court. But if the person denied the matter or refused to answer, the original admission under Clause 2(2) would not be admissible against that person in the proceedings.
      Under PACE a person cannot be required to answer questions. It is possible in certain circumstances in subsequent criminal proceedings for the court to draw inferences from a refusal to answer or a failure to mention facts later relied upon in one's defence, but that is a different matter.
      I therefore argue that it is quite wrong for the Government to state that the person admitting illegal storage and suspected of committing an offence would not be interviewed under the Clause 2(2) procedure. If that is right, the Clause 2(2) procedure might in itself prove completely ineffective and its inclusion in the Bill would be a waste of time. Such a person would not be required to answer the officer's questions, and thereby valuable information as to the storage of pesticides might be withheld. I have little doubt that a person who has admitted illegal storage under the Clause 2(2) procedure might well be arrested and re-interviewed under PACE, when any admission made in the PACE interview would be admissible, but that is a different matter.
      I argued in the notes that I faxed to MAFF that the Government may be confusing two situations. They fail to appreciate that the Clause 2(2) procedure is initiated
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      before any admission is made. The admission arises as a result of that procedure. The admission in scenario one ex hypothesi is not repeated in the PACE interview, which of necessity occurs after the Clause 2(2) questioning.
      I promise to be briefer and, I hope, clearer on scenario two. I notice that the noble Lord the Chief Whip appears relieved to hear that. In scenario two the prosecution cannot seek to allow a person to refresh his or her memory from an earlier statement where that person has flatly contradicted the contents of the earlier statement. A witness can, in certain circumstances, be allowed to refresh his or her memory from a statement made by him or her at an earlier time when the memory was clear. The prosecution can seek to allow a witness to refresh his or her memory when a witness says that he or she cannot remember the facts or is unsure about the facts. But in scenario two, ex hypothesi the witness is lying; that is, deliberately and falsely stating that he or she did not store pesticides for Mrs. Bloggs. The only way that the original statement under Clause 2(2) can be brought into the case is by an application to treat the witness as hostile. I therefore argue that scenario two is correct. It is not a memory-refreshing situation.
      We gather pace at this stage—no pun intended, I assure the Committee. This evening, about an hour-and-a-half ago, I received a further letter from MAFF. With regard to scenario one, the Minister writes:
      "You are of course correct"—
      I think it must be the first occasion that a Government Minister has said that I am correct; I must treasure this—
      "that the clause 2(2) procedure can be used against any person whom the officer has reasonable cause to believe is able to give information and it may occur that someone suspected of committing an offence is interviewed under this procedure. But as you point out such information could not be used in court which is why, in practice, when someone is suspected of committing an offence they are more likely to be interviewed according to procedures under PACE. In some cases it may happen that during an interview begun under clause 2(2), because of disclosures made by the interviewee, the interview is stopped, the interviewee is formally cautioned and the interview progresses according to PACE procedures".
      I am greatly concerned as a result of receiving that letter. It had been my understanding that one of the purposes behind this provision in the Bill was to cope with a situation where an employee was forced into the position of giving evidence against his or her employer that would possibly incriminate that person or his or her spouse and that that was such a draconian matter that was being forced on the employee that provision was made within the Bill to give such a person immunity from prosecution in order to protect him or her. What is stated in the letter is that that immunity is going out of the window; that there is an intention from the beginning to say: "If we think we have got you banged to rights, we will do it; we will go ahead and get you. We are not going to use the Clause 2(2) procedure unless we think you have done nothing wrong and you can get off the hook". I have serious concerns about the way the Clause 2(2) procedure is progressing.
      One of my noble and learned friends pointed out to me earlier that PACE does not apply in Scotland. I bow to my noble and learned friend's experience as a

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      previous Lord Advocate and Member of your Lordships' House. I ask the Government to clarify the situation with regard to Scotland, in particular as to whether PACE does not apply there.
      With regard to the second scenario, the letter goes on to say:
      "in the extreme case where the witness has blatantly lied then the only course open may well be to treat the witness as hostile. This has no particular advantages for the prosecution and would of course apply to all evidence supplied by that witness, some of which may assist the case. This is why the prosecution will seek to avoid the situation occurring by asking the Court to allow a witness to refresh their memory from an earlier statement. As you say though this is not going to be appropriate when the witness is blatantly lying".
      I am saying more than that. I am saying that not only is it not appropriate, it is simply not possible. Under criminal procedure as it stands, where somebody has lied and one is trying to adduce different evidence, one cannot do it through a procedure of allowing them to refresh their memory. The court will not allow it.
      I repeat my earlier thanks to the Government for taking such care and consideration in trying to resolve this issue. I fear that they have actually dug themselves into a deeper hole by attempting to help me. I regret that. At Second Reading I was genuinely attempting to resolve the situation. I hope that either the Minister or the noble Lord, Lord Stone of Blackheath, is able to shed a little more light on these dark corners. I beg to move.
      8.15 p.m.
      Lord Donoughue: I thank the noble Lord, Lord Kimball, for his characteristically generous words. I also thank the noble Baroness for being so co-operative during our approach to this Committee stage. She should not be surprised that I described her as "correct"; I often view her as correct, but I hope not too politically correct.
      I shall not detain the Committee with any seductive scenarios. However, I remind Members that the purpose of the power in question is the effective but fair questioning of witnesses. The amendment would create ambiguity on the question of whether someone can be required to answer questions which could incriminate him or his spouse. It would also remove a protection for individuals that is specifically designed to meet human rights concerns. It would be unfair if people's potentially self-incriminating answers to questions put to them under compulsory powers, could be used against them in a subsequent prosecution for a breach of the 1985 Act. Members of the Committee will recall that the European Court of Human Rights, in the Saunders case made precisely that criticism of powers of questioning where the accused had no protection against that unfairness. We believe that the amendment would remove that protection from the statute.
      I am genuinely grateful to the noble Baroness, Lady Anelay, for raising this point. As I say, we cannot accept the amendment as it stands, but I acknowledge that the noble Baroness has deep concerns about this matter and has put forward some interesting arguments. I am therefore happy to reflect on the matter and to
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      come back to it at Report stage. In that spirit, I hope that the noble Baroness will agree to withdraw the amendment.
      Lord Stone of Blackheath: I am grateful to the Minister for offering to reflect on that point. I am glad we did not make a snap judgment on these issues. I hope too that this is regarded as reasonable and acceptable by the noble Baroness, Lady Anelay.
      Baroness Anelay of St. John: I shall try to be as reasonable and acceptable as I can, as long as it is reasonable for the Opposition to be so.
      It was not my intention to remove any protection from witnesses under the Bill; indeed, it was to clarify how that protection would operate effectively. I certainly did not intend to press the amendment in its present form. I thank the Minister for his offer to reflect upon the issue and to return to it at Report. I look forward to seeing that further amendment at that stage. I hope it will clarify the position. I am sure that any amendment which protects witnesses will meet with the approval of the House. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendment No. 7 not moved.]
      Clause 2 agreed to.
      Clause 3 agreed to.
      House resumed: Bill reported without amendment.
      Lord Hoyle: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes before nine o'clock.
      Moved accordingly, and, on Question, Motion agreed to.
      [The Sitting was suspended from 8.25 to 8.55 p.m.]

      Government of Wales Bill
      House again in Committee.
      Clause 23 [Transfers: supplementary]:
      [Amendments Nos. 77 to 82 not moved.]
      On Question, Whether Clause 23 shall stand part of the Bill?
      Lord Williams of Mostyn: We have just debated Government amendments to Clause 22 making various widespread changes to the Bill's provisions on cross-border functions. Clause 23 as it stands is therefore redundant. I shall therefore oppose the Question that Clause 23 stand part of the Bill.
      Lord Mackay of Ardbrecknish: I must say that in all the legislation in which I was involved in the last Parliament I do not think I ever proposed that one of my own clauses should not stand part of the Bill. I must make a stop in the proceedings in order to note this amazing business.
      I find it even more amazing because at 4.40 p.m. this afternoon I wrote down that the noble Lord, Lord Williams of Mostyn, said that the Government

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      would consider any amendment but they would conclude that they were right all along. Quite clearly they have considered their own amendment and concluded that they were wrong all along. They are therefore amending their own Bill. I am not complaining about that; I just want to draw it to the Committee's attention. I hope that if some Members of the Committee decide later in the proceedings that the Bill ought to be amended the Government will not complain too much. If the noble Lord can amend his own Bill then surely the rest of us can amend his Bill.
      My second point is that I hope that the noble Lord appreciates the importance of a revising Chamber. Where would the Government have been if we had been a unicameral body—just like the Welsh assembly and the Scottish parliament—and had got to the end of the proceedings in the one and only House and suddenly found that their Bill was deficient in significant ways? More than half the pages in the Marshalled List are down to Government amendments.
      My third and most serious point is that these are big changes. The one we are discussing is the insertion of a new schedule into the Bill in place of a clause; later on another large schedule will be put into the Bill in place of a clause. I counted very roughly, and 35 or 36 pages of the Marshalled List will figure in the Bill. The Delegated Powers and Deregulation Committee has not been able to give us its views on this new chunk of the Bill. This is a serious problem. If the Government are going to make major amendments to the Bill in Committee, that is something to which the House will have to turn its attention.
      After a quick look through the major amendments which are being put in in place of Clause 23, I notice quite a lot of delegated legislation. As a founder member of the Delegated Powers and Deregulation Committee, and subsequently as a recipient of some of its adverse reports, I very much appreciate the important work of the committee. I have reservations that we are now seeing a whole new chunk of this Bill which will not be considered by the Delegated Powers and Deregulation Committee.
      I know that the Minister cannot do anything about the committee but I hope that what I have said will be read by the people who are responsible. I do not know whether the Delegated Powers and Deregulation Committee can have another look and report before Report stage on what will be very much a rewrite of large portions of the Bill. It is an important issue when one has new parts of the Bill containing delegated powers. That is the point I wanted to make about the noble Lord's intention to oppose his own new clause. I am tempted to resist but I shall resist the temptation.
      9 p.m.
      Lord Thomas of Gresford: I find it extremely refreshing that the Government should be so confident of their position that they can throw out an important clause and replace it with a schedule which explains everything in much more detail. I wish that such an approach to legislation had been adopted by the previous
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      government. They clung to every word, every adverb and every verb of the Bills they brought before the House rather than admit for a single second that they were wrong or had rethought the position. Here the Government have rethought the position and have carefully set out their fresh proposals. I hope it is a precedent that the national assembly for Wales will follow.
      Lord Elis-Thomas: I am committed to seeing the Government's business through, especially at this time of night. However, I am tempted to intervene as usual, by the remarks of the noble Lord, Lord Mackay. This is a matter of the Government delegating their own intellectual arrangements to rethink their position. That is admirable. I support them.
      Clause 23 negatived.
      Clauses 24 to 27 agreed to.
      Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 83:
      After Clause 27, insert the following new clause—

      CONCORDATS: PARLIAMENTARY APPROVAL
      (" . No Minister of the Crown or Government Department shall enter into a concordat with the Assembly or a committee of the Assembly unless a draft of the concordat has been laid before, and approved by resolution of, each House of Parliament.").
      The noble Lord said: We now turn to the interesting question of concordats. Despite all the words spoken about these new creatures, I am still a little unsure what they are and how they will work. I understand why we cannot see a lot of examples as the parties to the concordats do not yet exist. We have one worked example, as a school textbook may describe it, but, to be honest, it does not make me any the wiser. It reads a little like a series of platitudinous soundbites, but I suppose I should not be surprised. That is very much the approach of the Government to each and every issue.
      Who are these concordats to be between? In the Second Reading debate the noble and learned Lord, Lord Falconer of Thoroton, replying for the Government, answered some points I made. I asked him specifically who the concordats were going to be between. The noble and learned Lord said:
      "Any draft concordats that the Welsh Office produces in preparation for the assembly will be published, subject to the provisos mentioned in the Government's White Paper on freedom of information".—[Official Report, 21/4/98; col. 1131.]
      My first question is: will someone explain that proviso? I think I know what the proviso is. We have been told that some concordats may not even be published in line with the "substantial harm" test proposed in the Government's White Paper on freedom of information. I would be pleased to hear what "substantial harm" there might be in any of the concordats between the Welsh assembly and Parliament or between the government in Wales and the Government of the United Kingdom. I am naturally suspicious when the Government suggest that they may have concordats, which I understand are going to be terribly important, but the public may not know what those concordats are. I should like to know what exactly the proviso really means and preferably be

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      given an example of a concordat, or an issue on which a concordat may be appropriate, where it would be in everyone's interest that the secret society should rule.
      The noble and learned Lord went on to say that,
      "concordats are practical documents dealing with working relationships rather than matters that need to feature on the face of legislation … They will not take the form of binding contracts; they will not take the form of statutory documents, but it may well be the case that they will create a legitimate expectation of consultation".—[Official Report, 21/4/98; cols. 1131–32.]
      I ask the Minister this question. Who are the concordats going to be between—between the Welsh assembly and the Westminster Parliament or between the Welsh government and the United Kingdom Government? There was a suggestion in the noble and learned Lord's speech that they might be between a cross-over of the two, that they might be between the Welsh assembly and the United Kingdom Government. Therefore, the Welsh assembly would have a chance to discuss the concordats but Parliament at Westminster would not because it would be the Government who would be the signatory. I am a little confused. I understand that there might be a concordat between the assembly and Parliament. I understand that there might be a concordat between the Welsh government and the United Kingdom Parliament; but I am a little unsure about the cross-overs. Who will sign these concordats? It appears that sometimes it will be civil servants, sometimes Ministers and sometimes a mixture. Lastly, what democratic control will there be?
      Clearly, if the concordats are between the Welsh assembly and the United Kingdom Parliament, there has to be parliamentary scrutiny of some kind, both here and in Cardiff. Interestingly enough, I am not alone in being concerned because I am joined in this group of amendments by noble Lords on the Liberal Democrat Benches, who have an amendment which attacks the same issue, although it asks for a slightly different solution. The noble Lord, Lord Elis-Thomas, has a more detailed amendment, which I find interesting, proposing a slightly different procedure. My amendment requires that all concordats would need affirmative orders of this place. Noble Lords on the Liberal Democrat Benches have gone for the negative procedure, which means that Parliament would be able to deal with those issues if it felt it needed to debate them. On minor issues, about which there was no disagreement and where it was felt that there was no need to explore what the Government felt or what was behind the concordat, the order would be allowed to go by.
      The noble Lord, Lord Elis-Thomas, wants the procedures governing statutory instruments to apply. As both these procedures govern statutory instruments, I am not sure on which side he is coming down. If he wants to leave it open so that some could be negative and some affirmative, we would need to have something written into the Bill to define when it would be one and when it would be the other.
      These matters are difficult. We are obviously now looking at the issue of democratic control. The need for such control seems to me to be highlighted by the problem of the status in law of concordats. I mentioned that and the noble and learned Lord, Lord Falconer,
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      replied on the subject, but I must admit that I and some of my noble friends who know more about the law than I do remain puzzled.
      Let us assume that a citizen is aggrieved by the workings of government. He has legal recourse in that he can go for judicial review and various other things. However, if the reason for his aggrieved feeling is in a concordat and that concordat has no legal status because it is not a statutory instrument and it has not been before the Houses of Parliament, I believe that the aggrieved citizen will remain aggrieved in that he has no legal recourse because the document is not legal. It may be that I am wrong about that. If I am I shall be delighted to be told that if someone was aggrieved about the way in which a concordat worked in his or her individual case he would be able to do something about it and get a legal remedy. If that is the case then one of my fears goes by the board.
      The noble and learned Lord, Lord Falconer, said that they will not be in the form of binding contracts. That suggests to me that they will not be legislative. Indeed, they cannot be unless there are legislative procedures. As I see it, the Government do not intend them to have those procedures. Any one of our amendments tonight would give that legislative power, and that in my view would give the aggrieved citizen, if such ever existed, some recourse.
      I believe the Minister will say to me that there are going to be far too many concordats; that many will not be very important and perhaps not at all controversial and that we should not overload the parliamentary timetable with affirmative orders. I understand that. But the Liberal Democrat amendment and that of the noble Lord, Lord Elis-Thomas, gets round that. These two amendments would certainly allow both the assembly and this Parliament to debate and scrutinise where they felt there was a need for public, democratic scrutiny.
      So I say to the Minister that I shall not feel in the least slighted if he turns down my amendment but finds the Liberal Democrat amendment or that of the noble Lord, Lord Elis-Thomas, more satisfactory. I shall be delighted for the assemblymen in Wales and the Members of this Parliament in both Houses in future if the Government accede to some form of parliamentary scrutiny on this issue. I see that with the affirmative procedure I would be overloading the parliamentary timetable here. That may be quite a good thing because it would stop the Government doing other things. But I do not believe the Government would accept that. In the amendments that the three of us have brought to the attention of the Committee there is genuine concern. I hope that there is the possibility of some kind of suitable solution coming from the Government. I beg to move.
      Lord Thomas of Gresford: I speak to Amendment No. 84. There is no concordat between myself and the noble Lord, Lord Mackay of Ardbrecknish, and not even with my noble friend Lord Elis-Thomas on this occasion. I take as my text that which the noble and learned Lord the Solicitor-General said in response to this issue when it was raised in the Second Reading debate—that concordats should be flexible working

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      arrangements but that they would create a legitimate expectation of proper consultation between the organs of the assembly and the administration of the Westminster Parliament. I stress that these are arrangements that have to be flexible and have to change in the light of developments and working practices that will be created between the two institutions. I have no doubt that in due course concordats will be less meaningful as constitutional conventions come into being.
      There is no point in having the legitimate expectation of consultation to lead to a judicial review of the decision that is taken unless the aggrieved citizen knows precisely what that concordat is. So the purpose of the amendment that we put forward from these Benches is to ensure that there is transparency. We have no objection to flexible working arrangements, nor to changes in those arrangements, as long as they are published and are in the public domain.
      The way we have put it in this amendment is that any concordat that is entered into should be laid in draft before Parliament and then, but only then, should one side or the other think it necessary, will the matter come before Parliament on a Motion to annul it. Its importance is not in order to create a cause of action between the Welsh assembly, on the one hand, and the Westminster Parliament, on the other, so that one would be suing the other or trying to obtain specific performance on some contract or agreement or anything of that nature. The whole purpose of concordats is to create a working relationship and its publication is to enable the citizen to know what is going on. There has been a great deal of heat, but no light, in Wales about what a concordat is and how it should work. We hope that by ventilating the issue this evening we shall have some light shed on this so that the public can understand what is meant by "concordat".
      9.15 p.m.
      Lord Elis-Thomas: I am grateful to both the noble Lord, Lord Mackay, and my noble friend Lord Thomas of Gresford for beginning to bring light to the issue of concordats. The only previous light to be shed on this came in a Parliamentary Answer in another place on 27th February, following which a document was placed in the Library. The Answer came from Mr. Ron Davies in response to a Question from Mr. Gareth Thomas and explained the purposes and significance of concordats.
      My concern in Amendment No. 103A is about the transparency of the scrutiny relationships in both Houses here in the Parliament at Westminster and in the national assembly at Cardiff Bay. There should be an understanding that the relationships which are entered into in concordats are of equal value to both parties. Part of my concern, as set out in the amendment, arises from the statement in the guidelines that the non-statutory concordats are to be based on the good working relationships between the Welsh Office and Whitehall departments and on building up confidence in those relationships.
      My concern is that whereas the national assembly will scrutinise the concordats—no doubt assembly secretaries will be subject to detailed questioning from
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      assembly members about the arrangements into which they have entered—such scrutiny might not be exercised here in Westminster over the other side of the partnership, as it were. We appreciate that the partnerships are entered into with confidence and with a developmental attitude. We are told that there will be arrangements in the guidance for resolving disagreements. We shall be interested to know what progress has been made so far on that.
      In Amendment No. 103A, I have highlighted a number of areas—I shall not deal specifically with the relationship with the European Community because that is the subject of another amendment—including the question of the arrangements relating to payments to the assembly under Clause 82. Subsection (6)(c) is important because it relates to the arrangements whereby assembly secretaries may seek advice and information from employees of Ministers of the Crown. I refer to the accessibility of information to assembly members emanating from the Whitehall machine, if I may so describe it, or from officials working for the Parliament and Government here.
      There is a mystery in the guidance as it describes the signing of the concordats. Here, I echo what the noble Lord, Lord Mackay, said. The 27th February guidance tells us that if concordats concern politically sensitive issues, they may be signed by UK Ministers and assembly secretaries, otherwise they would be signed at senior official level. But who is to determine which issues are politically sensitive? There is a danger that what is politically sensitive in Cardiff Bay may be regarded as politically insensitive in Westminster, and vice versa. It would be helpful to have some information on that.
      As always in these debates, I try to come up with solutions as well as criticisms. Here we have an opportunity not necessarily to follow either my amendments or that from my noble friend Lord Thomas of Gresford, but to find another role for the House of Commons Select Committee on Welsh Affairs—I understand that it is looking for another role—or, for that matter, for the Welsh Grand Committee in another place or for a yet-to-be-created body, which I can well imagine, such as a Welsh Grand Committee in this House. Such committees could subject to great and detailed scrutiny the relationship between this Parliament at Westminster and the national assembly in Cardiff.
      That function could be carried out by elected or appointed members representing the Principality of Wales in this House and in another place. They would be United Kingdom parliamentarians and would therefore be capable of scrutinising UK matters and relationships between Whitehall departments and assembly departments in Cardiff in terms of the secretaries and executives there. That would be a suitable compromise, ensuring effective scrutiny as well as the democratic legitimacy of both bodies, both this Parliament and the national assembly. I put that forward for starters.
      Lord Hooson: When I looked at the Marshalled List and observed that I had put my name to this amendment

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      I wondered why. As I observed it more closely, I concluded that I had signed it to ensure that there was a wider debate on the issue of concordats.
      Lord Elis-Thomas: I had assumed that there was a concordat between the noble Lord and his noble friend.
      Lord Hooson: That concordat is of a different nature. I was most grateful to the noble and learned Lord the Solicitor-General for his contribution on the issue of concordats in the Second Reading debate. He reinforced my view, which I had already expressed within my party, that a concordat would be a very important matter for justices to consider in an application for judicial review in the unhappy event of a disagreement or something of that kind between the assembly and the Ministry in London. This matter causes concern in Wales and I believe that there is a need for greater clarity in the Government's thinking.
      The noble and learned Lord indicated the general approach but perhaps he will go a little further. As I understand it, concordats are a fairly recent introduction into political life in this country and Europe. I am not a legal historian. The first reference to concordats that I saw was during the Reformation when the Papacy was very concerned, in the emergence of the nation state and the turbulent state of Europe, that other countries should not follow the Tudor example and break away from Rome. The Papacy entered into concordats with various countries. As I understand it, it was not a contract but it laid down a working arrangement and specified those spheres in which the Pope and the monarch would be supreme.
      I believe that to introduce concordats into the Bill is a very wise suggestion. We are treading on entirely new territory in the relationship between the assembly, which is the first of its kind, and Westminster. We are all agreed that the relationship should be reasonably flexible. The greatest mistake that we could make at the moment is to try to embody every detail of the relationship in an Act of Parliament. That would be asking for trouble. In the course of the next five or 10 years we shall see what happens. There will be times when there is a bumpy ride and Parliament has got it wrong; there will be times when the assembly wants more power. What is needed is a set of working arrangements. That is the general purpose of the Government as I understand the words of the noble and learned Lord the Solicitor-General.
      Therefore, I am not sure that if these three amendments were pressed to a vote I would support any of them. However, I very much want to hear the Government's view as to the purpose of the concordat. When one has no constitutional conventions to govern the relationship between the assembly in Cardiff and Parliament the best alternative is to have a concordat. That can be the basis of a legal ruling if that ever becomes necessary, but the concordat must be capable of adjustment from time to time. The concordat governing the relationship between Parliament and the assembly should be reviewed from time to time to see
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      whether the assembly, Parliament, or the government department concerned wants to make adjustments in the light of experience.
      I do not believe that it is entirely suitable to treat concordats as though they were statutory instruments. Having reflected upon the matter, I am convinced that the Government's approach is right. We are dealing here with normal working relationships. We do not want things embodied in stone, as it were; we want adjustable relationships. Over the first five or six years, the concordats will be important. Thereafter, they will become less and less important, because conventions will have been established and a relationship set up. On reflection, I believe that I was right to sign the amendment, because it will engender a response from the Government as to their latest thinking on the subject.
      Lord Prys-Davies: The noble Lord was right to sign the amendment, because it gives us an opportunity to discuss the role of the concordat. I should like to pursue some of the points raised by the noble Lord. As I see it, the concordat represents a low-key approach to the question of co-operation, but if co-operation is enthusiastic it does not require to be based on any written document. Nevertheless, a document would be of value. It would remind the assembly and the departments here in London of their obligations. The task of drawing up the concordat would be helpful in identifying the obstacles to co-operation which need to be dealt with.
      I understand from what Ministers have said in the other place and here that the concordat may vary from department to department. That is all very well, but I should have thought that there were certain common principles that would govern all concordats. I am not asking for those principles to be embodied in the Bill, but it would be helpful if Ministers could identify them.
      We have heard this evening that those principles include, first, the duty to co-operate; secondly, the duty to agree certain procedural rules and to observe them; thirdly, how the parties will solve the disagreements—I shall not use the word "dispute"—which probably will arise. I cannot recall that the fourth point has been made, but it appears to me that whatever may be the procedure, that procedure should not be interfered with by either party, except by agreement. I should be grateful if my noble friends the Ministers, either today or at some other stage, would indicate what are the obligations which will be binding on the parties.
      Viscount St. Davids: We all understand what the concordats seek to achieve—a working procedure between the assembly or the committees of the assembly and the Westminster Parliament. If we follow the amendment tabled by my noble friend Lord Roberts, they will be given a judicial status, but would that judicial status stand up in the courts if judicial review were sought or would the courts look to the underlying law which gave rise to the problem and therein seek a remedy? The concordats will need to be flexible. They will need constant amendment. They will need to be published and to be signed by both parties, so that both

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      parties will have signed up. I cannot understand what their legal status would be if we follow the procedure whereby they become part of secondary legislation.
      Lord Stanley of Alderley: Even though he is a lawyer, the noble Lord, Lord Hooson, explained clearly the purpose of a concordat. My question is simple and down to the ground: what happens when that concordat goes wrong? Who can act? Is it the assembly? Is it Westminster? I know not which it will be, but it will go wrong. Life always goes wrong. When the Minister replies perhaps he will say how he is able to correct it.
      9.30 p.m.
      The Solicitor-General (Lord Falconer of Thoroton): I am grateful for the opportunity to throw a little more light, if I can, on the nature of the concordats in the context of this useful debate about their purpose. All the amendments proposed seek to provide some statutory basis for concordats. That would be in sharp contrast with what the Secretary of State for Wales said on 27th February: that they should not be part of any statutory Bill; they should be non-statutory. I agree with that. In the context of what we expect concordats to do, perhaps I may explain why that seems the right approach.
      As the noble Viscount, Lord St. Davids, said, the aim and purpose of the agreement is easily stated. It is to preserve good working relationships which currently exist and ensure that the business of government in Wales and at UK level is conducted smoothly and efficiently after devolution takes effect. The concordats involve in effect non-statutory, non-legally binding agreements between the Welsh assembly and various relevant departments of the Executive in London. Those concordats will contain provisions setting out how such things as information should be exchanged between the assembly and the department in London; how consultation should take place between the two parties to the concordat; and how disagreements, if they arise, should be resolved between the Welsh assembly and the department. Those matters will apply not simply in relation to domestic issues but also to European Union issues.
      The people who sign the concordats normally will be senior officials acting on behalf both of the assembly on the one hand and the department on the other. There will be cases where it is inappropriate for officials to sign. It may then be appropriate for an assembly secretary to sign with a Minister from the Government of the UK.
      A noble Lord asked how we will know what is a politically sensitive concordat and whether that is a matter for London, Westminster or the Welsh assembly to decide. I should have thought that it was a matter to be determined by the parties to the concordat. Where one is dealing with a non-statutory instrument such as that, where the parties have to form a sensible view at the time, it is plainly not possible in a debate of this
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      kind, or in advance of seeing what the specific concordats are about, to state what would or would not be regarded as a politically sensitive concordat.
      Lord Mackay of Ardbrecknish: I am sorry to stop the noble and learned Lord. He keeps using the words he used at Second Reading—agreement between the assembly and the department of the Government in Whitehall. I understand that the Bill has been changed. There will be a government of Wales using a Cabinet structure. My first rather simplistic question is this. Why is the concordat not between either the civil servants from, let us say, the health department in Wales and the civil servants in the health department at Whitehall, or between Ministers? The Minister keeps saying that it is between the assembly and the Whitehall Government.
      My second question is more general. If the concordat concerns the assembly, am I right in assuming that the assembly will know about the concordat and will be able to discuss it? That being the case, it seems to me that Parliament here will not be able to discuss it.
      I am not trying to be difficult. I understand why we need concordats. However, I wish to be clear about who the parties will be, and what right either party has. It seems to me that Parliament here, which will be one party to the deal, is being blocked from discussing those concordats.
      Lord Falconer of Thoroton: With respect, I do not believe that what the noble Lord said is correct. The nature of the arrangements is that the functions of the Secretary of State for Wales are being transferred to the assembly. It is then for the assembly to determine how those executive functions in part are dealt under the new arrangements. That is why I continue to refer to the arrangements being between the assembly on the one hand and the departments in Whitehall on the other.
      The noble Lord's second point brings me to the transparency of the arrangements. It was made clear on Second Reading, it was made clear by my right honourable friend in another place and I make it clear again that almost invariably the terms of a concordat will be published. I say "almost invariably" because, as I have indicated, they will not be published where they fall within an exception in the Freedom of Information Act. Broadly, the relevant exception is that publication would cause substantial harm. It is difficult to think what an exceptional case might be. Although I cannot helpfully give chapter and verse, one has in mind the kind of case where the arrangements would be the exchange of information about the commission of a crime and when, if one indicated how one would provide information from one place to another, that would be detrimental to the public interest and would cause harm because it would help people in committing crimes. Alternatively, perhaps it would be information in relation to defence. I put forward those exceptions extremely tentatively because it is the Government's belief that the occasions when the concordats are not published will be very exceptional.
      It has been said by a number of speakers in the debate that the concordats must be flexible. I entirely agree. When one is seeking to embody practical working

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      relationships, it would be wrong to give them the force of a statute or to surround them with the procedures attaching to a statute, whether it be primary or secondary legislation. Surely, when one is seeking to set out working relationships it would be more sensible to have flexibility.
      The legal impact of the arrangements between people who are trying to set out practical working relationships—whether it be between government departments and the assembly or between the existing Welsh Office and local authorities—would never appropriately be a legally binding contract or some kind of statutory scheme. It would be a non-legally binding, non-statutory arrangement. As I said on Second Reading, it might well give rise to a legitimate expectation that, before a particular step was taken by, for example, central government or the Welsh assembly, a particular procedure would be gone through. It might well give rise to a legitimate expectation. If there were a procedure for seeking to resolve disputes between the assembly on the one hand and central government on the other and that had not be gone through it would deprive someone of his legitimate expectation. Who could bring proceedings in relation to that? It would be any individual who could satisfy the court that he had adequate locus to say, "I have been individually harmed by the failure to comply with the terms of the concordat".
      It is not for me here to develop the law in relation to that; that will be a matter for the court. However, in many other areas where arrangements for consultation are not complied with, if an individual is harmed by them he has recourse to the courts under judicial review, not in relation to breach of contract and not in relation to breach of statutory duties.
      The noble Lord, Lord Mackay, suggested that we would be blocking parliamentary control and that we would be squeezing out Parliament in relation to this process. We are not squeezing out parliamentary control. Plainly, if there are matters of considerable concern either to the assembly or to Parliament because these concordats are published, the matter can be raised in Parliament like any other matter of public interest. There is no attempt to hide or disguise any matter in relation to it. If I may say so with respect, that would be ludicrously overstating the present position. I hope that my response has clarified what the position is in relation to concordats. I believe it is clear that it would be wholly inappropriate, wrong and damaging for concordats to be placed either on the face of the Bill or to be given legal effect.
      I turn now to the specific amendments. I believe that I have already said most of what I need to say in relation to them. Amendment No. 83 would require concordats to be approved by both Houses of Parliament. Amendment No. 103A would also require parliamentary approval for them. For the reasons that I have given, we believe that that would be excessive. Although it is far from exact, there is a parallel in that treaties and other international agreements entered into by Her Majesty's Government are not generally subject to a requirement of parliamentary approval.
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      There is even less of a case for submitting before each Chamber the detailed administrative arrangements for the assembly's working relationship with government departments. After all, the Bill is aimed at the creation of a national assembly, which will be directly accountable to the people of Wales for the functions that are to be devolved. Therefore, it really is a nonsense to suggest that the manner in which the assembly conducts its relationships with other arms of government must be subject to a form of second guessing by Parliament. As I said, we believe that it would be both unhelpful and wrong in principle for concordats to have statutory backing or for them to be binding contracts. They will work through a spirit of co-operation which will be to the benefit of both the assembly and Whitehall. The assembly will agree the terms of the various concordats after it has been elected.
      Amendment No. 103A would also require concordats to allow assembly secretaries to have access to officials of government departments. That goes far beyond current practice and, therefore, I see no basis for the view that assembly secretaries should be able to place demands on officials in Whitehall or elsewhere within the UK. Indeed, there are only a few matters upon which the Secretary of State for Wales takes advice from officials in other government departments. I believe that the Forestry Commission is the most notable example in that respect. As I said, it will be for the assembly to agree the terms of the concordats.
      Finally, Amendment No. 103A would provide for a concordat to allow the assembly to make representations about payments made to it under Clause 82. This proposed provision is wholly unnecessary as Clause 34 allows the assembly to consider any matter affecting Wales and make representations accordingly. I hope that I have made clear that the Government cannot accept these amendments. However, the debate has given the Government the opportunity to try to lay to rest many of the fears about concordats. I also hope that, on reflection, those noble Lords who proposed the amendments will realise that they are not really necessary.
      Lord Elis-Thomas: I have had the opportunity to reflect and find myself unexpectedly in agreement with my noble friend Lord Hooson. Nevertheless, we have had a useful debate. What concerns me is that the nature of the relationships and the nature of the scrutiny of the relationships should be of equal value in both Houses of Parliament and in the national assembly. I would not want members of the national assembly to feel that some background deals were going on in terms of concordats—or not going on, as the case may be—with Westminster and Whitehall departments. If we are talking about development of the positive relationship between the Welsh Office and Whitehall that we have had in the past, obviously that is something which we would all endorse. However, we must not allow assembly members or supporters of devolution in Wales to have grounds for suspicion that there is some kind of secret residual agenda regarding indirect control of the assembly. In that spirit, I am quite prepared to consider not moving my amendment.
      9.45 p.m.
      Lord Thomas of Gresford: We on these Benches are happy with the full exposition that the noble and learned Lord the Solicitor-General has given of the situation. We have never had any problem with the legal remedy available by way of judicial review. I think I made it clear in my opening remarks on speaking to Amendment No. 84 that the matter which concerned me was that there should be full publication so that if necessary Parliament can take up an issue or an aggrieved person can complain if he believes that procedures have not been followed in a particular case which has caused him harm or loss. From what the noble and learned Lord has said, I envisage that these concordats will be published in some form of loose-leaf volume which could be added to or subtracted from as the arrangements change, and that they will be available for everyone to look at. I am completely happy with that.
      Lord Mackay of Ardbrecknish: I cannot say that I am completely happy but then I suppose I am here to scrutinise the legislation and not just to applaud the Government. I did not have any real fears about concordats but any I may have had have certainly been allayed. I am still puzzled by a few matters although I welcome the noble and learned Lord's view that an individual who felt he had been harmed by a concordat would have some legal recourse. I am content to hear that the courts would consider such a matter in the way that I suggested.
      Lord Falconer of Thoroton: I said that an individual would not be harmed by a concordat, but would be harmed by non-compliance with a concordat.
      Lord Mackay of Ardbrecknish: Perhaps that is where my fear arises. I understand the point the noble and learned Lord makes about a concordat not being adhered to. But what if it is the operation of a concordat that causes aggravation to an individual? I am not too bothered about Parliament or the assembly being aggrieved because they are big enough—dare I say ugly enough?—to look after themselves. However, I am worried about an individual who may be aggrieved. I shall have to seek advice on what the noble and learned Lord has just said.
      As regards raising the concordats in Parliament, that is akin to what an MP says to an aggrieved constituent to get him out of the surgery on a Friday night. The MP says, "I shall raise this matter on the Floor of the Chamber". However, it is not all that easy to raise matters on the Floor of the other place. I am not easily persuaded that if some Members are worried about a concordat they can raise the matter in Parliament. The reality is that it is more difficult to raise matters in Parliament than the noble and learned Lord made it sound.
      I understand the point about not publishing some concordats, but I refer to the example the noble and learned Lord mentioned of criminal activity or defence. I do not believe a concordat would be needed as regards the police or the Home Office in London asking the Welsh authorities for some information about Joe Bloggs who may be up to some serious evil doings. I suspect that a concordat will set out the machinery by
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      which information will be transmitted, although it will not provide the information. I realise that the noble and learned Lord was trying to find an example of that. It seems to me that a concordat which can enable information to be passed to and fro does not need to be secret. Indeed, I should have thought it would be positively advantageous for wrongdoers or potential wrongdoers to know that information may be passed to and fro. That would perhaps prevent their wrongdoing. I am still a little puzzled as regards the classification of concordats that may need to be hidden from the public view. However, I understand what the Minister has said.
      I still have a problem as regards the point about the assembly. However, my noble friend Lord Roberts has suggested to me that the real problem is that the Bill as it stands leaves it to the assembly to decide whether it will have a Cabinet structure. The Scottish Bill certainly does not do that. I shall have to see whether the Scottish Bill is different in some degree and whether concordats between the United Kingdom Government and Scotland can be entered into at government level, whereas the position is different in Wales because of the differing powers in relation to the assembly.
      If that is the explanation, then my puzzlement begins to drift away. I am grateful to the Minister. I shall not just roll over in quite the same way as the other two noble Lords have done on this issue. I shall study these matters and if I feel that there is a point to which we should return, I shall certainly do so. If that means that I have to get some people to use their ingenuity to see whether we can find a lesser form of parliamentary scrutiny, below the level of statutory instrument, perhaps that would provide an answer. Perhaps the noble Lord, Lord Elis-Thomas, was trying to feel his way towards that.
      After all, we found a way to deal with deregulation during the passage of the deregulation Bill which was separate from statutory instruments and from anything that we had done. It was rather long-winded; I am not suggesting anything like that. However, it is not beyond the wit of man, and even government, to find a way in which Parliament could have a report given to it about the concordats so that there would be an opportunity for debate if Members of either House wanted that. It is a possible way that I shall have to explore. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendment No. 84 not moved.]
      Clause 28 [Reform of Welsh health authorities]:
      The Deputy Chairman of Committees (Lord Brougham and Vaux): I have to advise the Committee that Amendment No. 84A contains a printing error. The amendment should read:
      "Page 17, line 2, leave out from ("transfer") to end of line 3 and insert",
      the words as printed on the Marshalled List.
      Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 84A:
      Page 17, line 2, leave out from ("transfer") to end of line 3 and insert ("of any or all of the functions of a Welsh health authority to an existing or new Welsh health authority.").
      The noble Lord said: Clause 28 allows the reform of Welsh health authorities. These two amendments in my name are probing amendments. They have been tabled in the hope that the Government will tell us what they have in mind for the health service in Wales. Clearly they intend that the assembly shall have power to take over the functions of any of the five existing area health authorities and the Welsh Health Common Services Authority and the Health Promotion Authority for Wales. That much is implied in the recent Green Paper, Better Health—Better Wales.
      What has struck a number of people as curious is the way in which the Government have embarked on major changes in the NHS in Wales before the assembly comes into being. There is the project plan for the reconfiguration of NHS trusts which is proceeding apace and is currently the subject of consultation. As I understand it, it is proposed to scrap or merge the current 29 trusts and reduce them to 15. That is already causing howls of protest in areas such as Gwent and mid-Wales.
      The new configuration is expected to be in place by 1st April 1999, a month before the assembly elections. It occurs to one to ask what will happen supposing that the assembly, when it comes to consider the NHS, does not like the new configuration. Presumably there will be a further upheaval.
      But our main concerns here are the health authorities. The Green Paper states at paragraph 6.19:
      "Health authorities will have new duties of partnership, particularly with Local Authorities and the voluntary sector, to improve the health of their populations".
      The next paragraph states:
      "The new priorities for Health Authorities will require them to become more strategic and more focused on improving health. They will retain many of their existing responsibilities which were not associated with the internal market",
      and so on. The question occurs: where does the assembly feature in all this policy-making? Will the assembly have any say in the matter, or will it simply rubber-stamp and carry out changes already agreed at UK level and endorsed by Welsh Office Ministers?
      The White Paper, A Voice for Wales, outlined the assembly's intended health functions, and they are recapitulated in the health Green Paper. It is remarkable how little freedom of manoeuvre the assembly will have within the parameters of government health policy. The assembly will set the strategic framework with the objective of improving health across Wales, tackling,
      "inequalities in health status and in access to appropriate services".
      The Green Paper goes on to say:
      "The Government believes that this can be achieved by ensuring that health effects are taken into account in other agendas and by new forms of collaboration",
      and so on. What that means is that there is a connection between health and housing, for example, and that there will be cross-departmental collaboration in this and
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      other relevant fields. The more one reads, the more one wonders how much freedom the assembly will have to develop its own policies for the NHS in Wales. My answer is that it will probably have less freedom than the Welsh Office has had in the past or has now. I hope that the Minister can give us some reassurance. Health is currently a matter of great concern to us in Wales and will, I am sure, concern us greatly in the future. I beg to move.
      Lord Falconer of Thoroton: I am glad to have the opportunity to try to explain the purpose of the provision in Clause 28(1). The Government have made clear that they are committed to bringing public bodies in Wales under democratic control via the assembly. To that end, we propose to bring Welsh public bodies under the full control of the assembly. We see no need for health authorities to be treated any differently in that regard. Implicit in that approach is that the assembly must be able to reach decisions on how it views the commissioning and delivery of services. The NHS is a key public service in Wales and the assembly needs the power to determine how best to meet the health needs of all people in all areas of Wales.
      Since its inception, the NHS has undergone widespread structural and organisational change. Those changes continue apace. What might appear appropriate today may not be appropriate in some years' time. In particular, the role of health authorities is changing and will change further, as we move to replace the wasteful internal market, to abolish GP fundholding, to establish local health groups and to embrace a new public health agenda—many of the things that the noble Lord, Lord Roberts of Conwy, referred to.
      The assembly will be best placed to determine what structure of health authorities, if any, Wales needs. Under existing statutory powers that we propose to transfer, the assembly will be able to re-draw the health authority map, if it sees fit, or to rescind the existing delegation of certain functions to health authorities and discharge them itself. However, it would be unable under existing powers to transfer to itself those functions presently bestowed directly on health authorities by statute, particularly functions in relation to family health services. Thus it could choose to relieve an authority of most of its functions but yet be required to retain the authority in existence when it would be more effective to discharge the remaining functions in another way. Clause 28 is designed to ensure that such an anomaly does not arise. The amendment would frustrate that intention and oblige the assembly to apply to Parliament for help in handling a matter of relevance solely to Wales. It is intended to provide greater flexibility, rather than less.
      I submit that it would be a misplaced use of your Lordships' time if the Government had to bring forward primary legislation to give effect to changes in the NHS in Wales that the assembly could perfectly well handle for itself. That is why we wish to give the assembly the powers over health authorities in Clause 28, which mirror those applicable to other public bodies in Clause 29, and those that the assembly will inherit over NHS trusts when existing statutory powers are

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      transferred to it. Health authorities are important bodies with an important role, but there is no reason to put them in a privileged position as compared to other important public bodies in Wales.
      That is not to say that the assembly would necessarily want to abolish any or all health authorities in Wales. Our contention is merely that it is conceivable that the assembly might reasonably wish to have the flexibility to do so at some future date and that it would be wholly contrary to the spirit of the Bill to deny the assembly the power to do so, if appropriate. These amendments would leave with Parliament a power that the assembly might need and should have.
      The assembly's powers over the NHS will make the health service in Wales fully accountable and responsive to Welsh needs. At the same time, the NHS in Wales will remain very much a part of an integrated national service with common standards on matters that require a common approach. The Committee will also have heard the persuasive speech on NHS matters at Second Reading from my noble friend Lord Hunt of Kings Heath. I am pleased to reassure him and other Members of the Committee that close working relationships between the NHS in Wales and the rest of the UK remain very much part of our plans. However, potentially useful powers that will not prejudice such relationships should be in the assembly's hands. That is what Clause 28 is intended to accomplish and what the proposed amendments would constrain.
      In view of that explanation, I hope that the noble Lord will not press his amendment to a vote.
      10 p.m.
      Lord Roberts of Conwy: I am grateful to the Minister for that reply. I understand all the reasons for the clause; what I do not understand is the Government's current haste to reform the NHS before the assembly comes into being. However, there will no doubt be a further opportunity to discuss the health service in Wales when we discuss the new clause to be introduced by the noble Lord, Lord Hunt, relating to the health service. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendment No. 84B not moved.]
      Clause 28 agreed to.
      Clause 29 agreed to.
      Schedule 3 [Public bodies subject to reform by Assembly]:
      Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 85:
      Page 82, leave out lines 5 and 6.
      The noble Lord said: In moving Amendment No. 85, I shall speak also to Amendments Nos. 86 to 91. These amendments are concerned with the powers being given to the assembly under Clause 29 and Schedule 3 of the Bill to reform a number of Welsh public bodies. Those bodies, listed in Part III—for example, the Countryside Council for Wales—may only gain functions under this process. However, bodies listed in Part I of the schedule
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      may lose or gain functions and, in the case of the former, the assembly is given power to abolish the function and, indeed, the body if it feels so inclined.
      There are three bodies of direct concern to agriculture listed in Part I; namely, the dwellinghouse advisory committees in Wales, the agricultural wages committee for Wales and the sub-committee for Wales of the statutory advisory committee for England, Wales and Northern Ireland set up under the Hill Farming Act 1946. They will advise on the exercise of powers under that Act.
      Those bodies provide an important service on these subjects in Wales yet, as the Bill is drafted, it is possible that in the extreme case both the functions and the bodies could be abolished. The purpose of these amendments is to ask what the Government's intentions are with regard to them. Those intentions are tested by a proposal to transfer those bodies to Part III, thus joining the list of bodies which may only gain functions.
      In passing, perhaps I may mention that while in my rat and pigeon-infested attic I fell over the Wales 1978 file. Strangely enough, I discovered that the agricultural dwellinghouse committee was not devolved in that Act. I beg to move.
      Lord Elis-Thomas: I am grateful to the noble Lord for falling over the 1978 Act in his attic. I am sure it is not rat infested, as he maintains. I am sure that those picturesque windmills that he has on his land will have blown all the rats away.
      My particular amendments grouped here relate to the Higher Education Funding Council. I should declare an interest as chair of the Welsh Language Board, which may lose or gain functions under Part I. I will not rehearse what was said in earlier higher education debates.
      My concern is about the separation of functions between the Further Education Funding Council and the Higher Education Funding Council. I speak as someone whose only serious job ever was in adult and then higher education—or so my mother keeps telling me. She is 82 and would know these things.
      I am concerned about the joint planning and funding of the whole of the education system post-16. The different nomenclatures of continuing, lifelong, higher and further mean that the system is now so complex in terms of provision and need that these distinctions are not what they used to be. Therefore, to place the HEFCW in a reserve position under Part III and not to make possible a more effective integration of the further education and higher education planning functions represents a step backwards.
      There is serious concern, particularly in the bilingual sector of education—which obviously I represent in a statutory capacity—about the failure of strategic planning and the lack of effective allocation of resources. The separation away of HEFCW from the further education body can only exacerbate that. I ask the Government to give an indication of whether they are serious about the lifelong planning of post-16

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      education in Wales in the context of the assembly. Otherwise the assembly will be hampered in attempting to get value for money in post-16 education.
      The Earl of Courtown: The Committee will be glad to hear that I shall be extremely brief. My noble friend Lord Stanley of Alderley has explained the purpose of his amendments to which my name is attached. I will not repeat what he said. I shall be most interested to hear the Minister's intentions for safeguarding these bodies. He may say in response that it will be up to the assembly to make such a decision. That will be very little comfort to the agricultural industry. As we are all aware—it has been said many times this evening—agricultural confidence is at its lowest level for years, particularly in Wales.
      Lord Roberts of Conwy: My noble friend Lord Stanley, the noble Earl and the members of the three agricultural bodies listed in Part I have my sympathies. They were wrongly described as quangos by the Labour Party in opposition. They are in fact advisory rather than executive and helpful both to the Government and to the industry.
      The main point about Schedule 3 with its four categories of bodies subject to reform by the assembly is that it appears to pre-empt the assembly's consideration of these bodies. A more ample explanation is required than that available to us in the Government's notes on clauses. The bodies under threat are clearly those listed in Part I and the potential gainers are those listed in Parts III and IV. Those in Part IV are royal charter bodies and cannot be touched anyway.
      Is Clause 29, to which this schedule is attached, primarily inspired by the commitment to reduce the number of quangos in Wales? I hope not because some of these bodies do invaluable work on an all-Wales basis. It would be a shame to carve them up so that they lost their effectiveness. An example is the Wales Tourist Board. Like the noble Lord, Lord Elis-Thomas, I must express surprise at finding the further and higher education funding councils divided. As a Minister I had a hand in setting them up on a very economical basis, as I thought, whereby they were jointly administered, much to the benefit of both.
      The further education sector in Wales is not really large enough to justify a separate administration. We were fortunate to be able to couple them. There are other advantages to running the two sectors together, as the noble Lord, Lord Elis-Thomas, implied. I am saddened at the prospect of their division, and I hope that they can soon be reunited.
      Lord Falconer of Thoroton: Perhaps I may speak to Amendments Nos. 85 to 92 inclusive. The amendments seek to change the list of bodies that would be within the assembly's power in Clause 29, to take functions away from them, and ultimately to abolish them.
      Reform of public bodies in Wales is one of the key planks of the Bill. Part VI provides for the winding up of the Development Board for Rural Wales, the Land Authority for Wales, Tai Cymru and the Residuary Body for Wales. We have announced plans for the
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      winding up of Cardiff Bay Development Corporation. Under existing powers in NHS legislation, we are abolishing the two special health authorities in Wales and are consulting on a significant reduction in the number of NHS trusts. The number of training and enterprise councils is to be reduced from six to four.
      As we made plain in the White Paper, decisions on most of the remaining bodies would be for the assembly itself. While we will have made a very significant start—by reducing the number of unelected bodies and making all those that are left fully accountable to the assembly—it would be for the assembly to take other decisions under its powers in Clause 29. That is entirely consistent with the logic of the Bill. It is a matter for Wales to decide, through its assembly, what should be done. However, even if the assembly decided to abolish further bodies, the work that they do would still need to be done.
      The noble Lord, Lord Stanley, proposes in Amendments Nos. 85 to 87 that the three agricultural committees mentioned in Schedule 3 should not be subject to the assembly's reform power except to the extent that they might gain functions. The Government do not accept that analysis. The effect of Clause 149 is that the assembly could merge the agricultural wages committees in Wales into a single committee for the whole of Wales, and the pattern of agricultural dwelling house advisory committees would follow suit. But the Government believe that the assembly should, if it wishes, be able to go further and transfer the functions of these committees to other bodies and abolish them.
      As for the sub-committee for Wales on hill farming, the Government's position is that all the advisory bodies bar one—the Local Government Boundary Commission for Wales—should be within the assembly's reform power. That is the logic of the Government's position. In my view, it is entirely consistent with the whole purpose of the Bill.
      Amendments Nos. 88 and 92, in the name of the noble Lord, Lord Elis-Thomas, propose that the Higher Education Funding Council for Wales should be brought fully within the assembly's reform power in Clause 29. As a result the assembly would be able to transfer functions from the funding council to a range of other public bodies in Wales, including to the assembly itself; and if it transferred all the functions from the funding council, the assembly would have the power to abolish it. The Government's view is that the Higher Education Funding Council should not be within the category of bodies which can have their functions taken away from them, or be abolished, by the assembly.
      The traditional independence of the universities has meant that successive governments have, for decades, left decisions on their funding to specialised, arm's length bodies; the Universities Grants Committee and now the Higher Education Funding Council for Wales.
      The proposal that the Further Education Funding Council for Wales should be within the assembly's reform power does not mean that the independence of further education institutions is under threat. The function of funding further education will remain. But there are options for reform which the assembly may

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      wish to consider, taking account of the increasing links between the higher and further education sectors and the position of vocational training, which is currently funded by the training and enterprise councils.
      We have to bear in mind that there is a significant difference between further education institutions on the one hand and the higher education sector on the other. The latter operates in a UK-wide and international market for students, whereas further education meets mainly local needs. A total of 38 per cent. of students at Welsh higher education institutions come from elsewhere in the United Kingdom and 9 per cent. from abroad. Therefore, there is a case for the sector to be funded and monitored on a similar basis to other parts of the UK and in the new arrangements differently from the further education sector. In the light of the explanations that I have given, I hope that the noble Lords will withdraw their amendments.
      10.15 p.m.
      Lord Elis-Thomas: Perhaps I may respond to one point. Does the Minister's analysis of the relationship between higher and further education preclude further close collaboration and cross-funding by the assembly? It seems to me that his argument is that the TECs and the FE sector are for one market and HE is for another. That fails to take into account the Government's own strategy in terms of continuous and life-long learning. I ask the Minister to reconsider that.
      Lord Falconer of Thoroton: There are options for reform which the assembly can take which will have the effect of increasing links between the higher and further education sectors. So the proposal does not lead to the separation of the two.
      Lord Stanley of Alderley: As my noble friend Lord Roberts said, the particular bodies that I mentioned as regards my amendment are not unelected. They are advisory bodies, which is rather different from the point that they were quangos. I hope that that is borne in mind.
      I have to say to the noble and learned Lord that this is the first time that I have been quite concerned by his reply. He said that these bodies could be abolished. Being the cynic that I am, I can see a fully urbanised assembly and therefore I shall vote with the noble Lord, Lord Elis-Thomas, to make sure that it is not. But he might be in a minority of one. I can see the tremendous agricultural value that these three bodies have not being appreciated. I hope that the Minister understands why I am so suspicious.
      I shall think about this amendment and take advice. I am not happy about the bodies being subsumed into some organisation which has no agricultural or rural background. It matters very much in Wales. No doubt all we fellow farmers suspect each other, but we suspect those who are not farmers even more than each other. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 86 to 92 not moved.]
      Schedule 3 agreed to.
      Clause 30 [Implementation of Community law]:
      Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 93:
      Page 19, line 25, at end insert—
      ("( ) The power of the assembly to make regulations under this section shall not include power to make any regulations which result in, or are likely to result in, any diminution of European Community support measures for agriculture or rural communities in Wales, or which result in, or are likely to result in, any discrimination against agriculture or rural communities in Wales in comparison to other parts of the United Kingdom.").
      The noble Lord said: I am sorry to upset the Committee, but I must take this amendment separately. I have warned the Minister and my Front Bench. I am sorry that I did not realise before that it was rather different from the other seven or eight amendments. If I dealt with them altogether I would not only get the Committee in a muddle but, more importantly, I would get myself into one.
      Clause 30 of the Bill is concerned with the implementation of European Community law where the assembly has been designated in relation to particular matters or for particular purposes. To do so it may exercise powers currently used by Ministers to make regulations under the European Communities Act 1972. The purpose of this amendment is to find out how this proposed power for the assembly might operate in relation to agriculture in Wales. In particular, farmers would wish to be assured that there is no risk that the assembly could pass regulations which resulted in a reduction in support measures for agriculture or rural communities or which would result in discrimination against farmers in Wales as compared to farmers in other parts of the United Kingdom. I know that the Minister will say that I am being suspicious, but, as drafted, the Bill does not appear to contain any safeguard which would deliver that assurance.
      I have a number of specific questions which need clarification. They are as follows. First, will the assembly have any power to alter European Union agricultural grants? Secondly, will it have powers to alter national agricultural top-up money? As the Minister no doubt knows, there is a national element in the HLCA payments. Could the assembly be given powers to divert that into, say, the beef special premium or, as the spirit moved it, into some other part of agriculture, or elsewhere? Thirdly, will the assembly be in charge financially and administratively of any agri-environmental scheme and could agri-environmental payments for similar schemes be paid at different rates by the assembly from the rest of the United Kingdom? That is a particularly important point because, as we know, Agenda 2000 proposes alterations in such schemes. It is thought, for instance, that the HLCA payment could become an agri-environmental payment. Would the assembly receive such payments direct from Brussels, to do as Brussels says, or would such payments go into the Welsh block grant?
      I realise that the Minister may find my questions rather confusing. I thought of them only last night. They are certainly confusing to me. However, I wonder whether the noble Lord will be able to get his officials to prepare a statement on how the Government intend to approach these problems and queries, plus others which I have no doubt forgotten or failed to see, and whether he can place such a statement in the Library before Report stage so that we may try to understand this. I beg to move.
      Lord Williams of Mostyn: The noble Lord did, indeed, give me notice that he would degroup Amendment No. 93 and I quite understand why. In principle, we are not minded to accept the amendment because we do not think that we should fetter the powers of the assembly in the way that the amendment is specifically designed to do so.
      I am most grateful to the noble Lord for giving me the opportunity to have the matter researched and I undertake to write to him with detailed answers to his specific questions as soon as possible, and certainly before Report stage. I understand that Amendment No. 93 is a probing amendment, designed to flush out questions of some disquiet to the noble Lord's colleagues in the farming industry.
      Lord Hooson: Will the noble Lord also undertake to circulate a copy of that letter or at least to place one in the Library so that other spokesmen on this matter may see it?
      Lord Williams of Mostyn: I believe that we have a good record on that. We generally circulate such information. I have not promised to circulate information on every occasion simply because time is passing.
      Lord Roberts of Conwy: The sort of reply that I expect that we shall get from the Minister is the sort of reply that I had hoped to get when we proposed to probe matters by leaving agriculture out of the list of devolved subjects.
      Lord Williams of Mostyn: I accept that. If any supplementary answer is required, I shall include it in what is by now the large postcard that I shall be sending to the noble Lord, Lord Stanley of Alderley.
      Lord Stanley of Alderley: I am enormously grateful to the Minister, particularly for his last remarks. Saying, "Perhaps you would bring along later anything that I have forgotten", is the sort of remark that I make to my wife. I am most grateful to the Minister. His response will be most helpful. I am glad that he understands that this was a probing amendment. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 93A and 93B.
      Page 19, leave out lines 29 and 30 and insert ("contains regulations—

      (a) made by a Minister of the Crown or government department (whether or not jointly with the Assembly),

      (b) relating to an English border area, or

      (c) relating to a cross-border body (and not relating only to the exercise of functions, or the carrying on of activities, by the body in or with respect to Wales or a part of Wales).").

      Page 19, line 42 leave out ("also contains regulations made by a Minister") and insert ("contains regulations—

      (a) made by a Minister of the Crown (whether or not jointly with the Assembly),

      (b) relating to an English border area, or

      (c) relating to a cross-border body (and not relating only to the exercise of functions, or the carrying on of activities, by the body in or with respect to Wales or a part of Wales).").

      The noble Lord said: I have already spoken to Amendment No. 93A. I beg to move Amendments Nos. 93A and 93B formally.
      On Question, amendments agreed to.
      Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 94:
      Page 19, line 42, at end insert—
      ("( ) The subordinate legislation scrutiny committee established under section 59(1) shall—

      (a) consider any draft statutory instrument or regulations made under the powers contained in this section, and

      (b) report to the Assembly whether the draft statutory instrument or regulations would impose on businesses in Wales greater obligations or costs than the minimum required for the implementation of the obligation or the enjoyment of the right thereby implemented or enabled.").

      The noble Lord said: I beg to move Amendment No. 94. This group of amendments relates to the costs that may be incurred by the subordinate legislation activity of the assembly. They refer to the possibility of greater costs being imposed on businesses in Wales than in other parts of the United Kingdom. Similar issues arise in Clause 43 in terms of consideration by the subordinate legislation scrutiny committee of the costs and obligations and in Clause 59 in terms of a report to the assembly (Amendment No. 155) as to whether appropriate business representatives have been consulted in accordance with Section 66(3) about any draft instrument or regulation. Amendments Nos. 194B and 194C also relate to compliance costs in financial, social or environmental matters, so that the costing is a green costing. Amendment No. 194C also extends "business" to include other organisations that may have an interest in the whole question of the breadth of compliance costs.
      A number of these amendments have been tabled as probing amendments at the request of the CBI; others have been tabled at the request of the environmental movement. The amendments are an attempt to elicit a brief response from the Government on the whole question of the compliance costs of the assembly's activities, in particular the cost to businesses in Wales. I raise these issues because of my concern not so much about the costs of the large corporate sector but the relative importance of small and medium size enterprises within the Welsh economy. The cost effect

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      of the activities of the assembly on businesses is an issue of concern to them. I appreciate that we shall return in greater detail to the whole question of the relationship between the assembly and businesses generally and the new arrangements for schemes to promote businesses.
      I should like to have an initial response from the Minister about the Government's latest thinking on the relative impact of the assembly's activities on business costs in order to allay fears raised quite rightly during the referendum debate by various sections of the business community in Wales about the imposition of another level of government and the effect of that on enterprise. I invite the Minster in response to indicate the benefits to business in Wales that will accrue from effective partnership with the assembly, in particular the opportunities to strengthen the SME sector which arise out of the creation of the new powerhouse agency. Obviously, we shall look at that agency in detail at later stages of the Bill. However, it may be appropriate at this stage if the Minster indicates the benefits as well as the costs to enterprise of the legislative processes of the assembly.
      10.30 p.m.
      Lord Mackay of Ardbrecknish: This is an interesting set of amendments. I was a little puzzled by it and I shall explain why. I am slightly less puzzled when I hear the noble Lord, Lord Elis-Thomas, say that these amendments emanate from the CBI. Presumably, he has tabled these amendments to give the Government the opportunity to calm the fears of the CBI about additional costs. It is odd that the noble Lord should table these amendments. Although I believe he indicates that he is not in favour of total independence for Wales, I thought that that was what Plaid stood for, but never mind. Obviously, Plaid Cymru is a little different from the Scottish National Party.
      What I find interesting about this series of amendments is that—if I may paraphrase them like this—"We want to have our own powers separate and different from England, but we must not impose anything on the Welsh people, especially Welsh business, which is not being imposed upon our English competitors". I hope I paraphrase fairly the concerns of the CBI. It is concerned that the secondary legislation in Wales might be drawn up in such a way that additional costs will be placed on business in Wales which will not be placed on business in England because of the way the Government here have drawn up the secondary legislation for England.
      If that is a genuine concern of the noble Lord, it might be safer to leave all the powers at Westminster. The playing fields would always be level. There would never be any danger that they might be tilted a little against the interests of Welsh businesses. They would then be facing heavier costs and greater administrative burdens than their English competitors. I shall be interested to hear what the Minister has to say about that, because central to the whole principle of devolution is that the assembly will make secondary legislation for Wales regardless of what the English are doing. Otherwise there is no point in what is being proposed. It is just
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      cosmetic. I do not believe that the Government intend it to be just cosmetic. At least I hope, given all the time and trouble that everyone is taking over it, that they do not intend it to be cosmetic.
      The reality is that something has to be different. If it is secondary legislation that is going to the Welsh assembly, then surely there is no point in that happening unless we can conceive of circumstances, and approve of them, in which that secondary legislation will be different. It may well be that it will be framed in such a way that it will reduce costs to Welsh business, and place less heavy administrative burdens on Welsh business. Good, but they may be greater. They should not constantly be looking over Offa's Dyke to see what the English are doing.
      What if the English decide to change their secondary legislation to reduce burdens, demands and costs on English business? Will the scrutiny committee immediately look at that? Do we then assume that the Welsh assembly in those circumstances would immediately change its regulations? I have to say gently, even though it is late, that if that is what is proposed why are we bothering to have devolution of secondary legislation?
      I appreciate that the noble Lord is trying to ensure that the CBI's voice is heard. It is a little contradictory to the general proposition underlying the noble Lord's own principles with regard to the Bill and, I suspect, the Government's own principles. I should be surprised if the Government can give Welsh business any comfort in that regard, other than that the assembly will obviously be mindful. They cannot suggest that all the time the assembly will be looking at the parallel English secondary legislation to ensure that business in Wales is not disadvantaged. I look forward to watching the Minister wriggle on this particular hook.
      Lord Stanley of Alderley: I have two amendments in this group. They are Amendments Nos. 194A and 194D. I have a nasty feeling that my noble friend Lord Mackay might say the same about my amendments as he said about those of the noble Lord, Lord Elis-Thomas. We will wait and see. Clause 66 is welcome in principle in that it ensures that an appraisal as to the likely costs and benefits of complying with any proposed assembly legislation should be carried out before a draft of the legislation is laid before the assembly.
      However, the clause provides no guidance on what form such appraisals might take. In relation to environmental matters, it is possible that the assembly will be pressed to pass regulations which are tougher—I can hear my noble friend coughing—and more expensive to comply with for land managers in Wales than in England. The purpose of the amendment is to ensure that proposed environmental legislation appraisals must compare the costs to business of complying with any similar legislation in force or proposed for England.
      In my final amendment on that point, Clause 66(3) ensures that if a regulatory appraisal indicates that the costs of complying with any proposed assembly

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      legislation are likely to be significant, appropriate consultation (including with business) must be carried out and the regulatory appraisal published. This begs a number of questions including how a judgment is to be made about whether costs are likely to be significant. Does the way the clause is drafted mean that there is no obligation to publish regulatory appraisals unless it is judged that the cost of complying would be significant?
      The purpose of the amendment is to probe the application of assembly regulation to farmers by providing that, if legislation would result in lower payments to farmers in Wales compared with those payable for similar purposes to farmers in England, then the costs of complying must be considered significant, and therefore statutory consultation must be carried out.
      Lord Williams of Mostyn: Amendments Nos. 94, 107, 155, 194A, 194B, 194C and 194D are grouped together. I shall deal with them together.
      They fall into this group because they are all concerned with the assembly procedures for making subordinate legislation and, in particular, the regulatory appraisals which will frequently be an element of those procedures.
      Amendment No. 94 deals with implementing Community law. In so far as it seeks to add appraisals to those procedures, it is unnecessary. Orders implementing Community law will be assembly general subordinate legislation under Clause 59, and therefore Clause 66 applies.
      The same argument applies to Amendment No. 107. Clause 43, to which the amendment relates, does not in fact confer a separate category of order-making powers on the assembly. It simply explains the nature of the order-making powers which have been or will be conferred on the assembly under transfer of function orders. Orders under the order-making powers will be assembly general subordinate legislation, and so regulatory appraisals will generally apply.
      The question is raised as to the nature of the appraisals which will operate. Amendment No. 94 calls for a report to be made on whether the costs to business would exceed the minimum necessary for proper implementation. Amendments No. 107, 155, 194A and 194D want comparisons to be made with the costs arising from parallel developments in either the United Kingdom or England. Amendments Nos. 194B and 194C envisage that appraisals should contain assessments of financial, social and environmental costs as well as the costs to business. The noble Lord, Lord Mackay of Ardbrecknish, invited me to wriggle on the hook. I have no intention of wriggling because I believe that that is in many ways unrealistic. It would be a burden on the assembly which in all likelihood would be impossible to sustain. As the noble Lord rightly said, the assembly would be expected not only to assess the implications of its own proposals but also those proposed for England or for the United Kingdom. If the proposals for England were not yet in place so that an assessment could not be made, one presumes that the assembly would not be able to make its orders. If there were changes to the English orders, as the noble
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      Lord, Lord Mackay pointed out, there would be the call for a re-review of assembly costs or assembly regulation consequences.
      This does not address the realities of the situation. We are looking for regulatory appraisal where appropriate. There will be consultations with the representatives of business, in which I include agriculture. Those representatives will draw attention to any apparently excessive burden being placed on Welsh business. I agree with the noble Lord, Lord Mackay, that, if one is going to devolve, one has to accept the necessary consequences: that the assembly will come to conclusions which may well be different from those which obtain in England, Northern Ireland or Scotland. That is an inevitable and right consequence of devolution. There is no point in giving apparent power to assemblies or parliaments and then saying that they may not exercise them. I agree with the noble Lord. I do not wriggle because I detect no hook.
      On Amendments Nos. 194B and 194C, the Bill sets out a framework for regulatory appraisal. It is for the assembly to determine what sort of appraisal it needs. Not all appraisals will have to be exactly identical for each set of subordinate regulations. It is for the assembly to decide these things. If its members are fit to be elected, they are fit to be trusted with coming to discrete conclusions on different topics.
      The noble Lord, Lord Elis-Thomas, invited me to say—I am not sure that this is quite the occasion—what the benefits to business will be. They will be the development of the powerhouse; a closer connection with devolved institutions and powers; the opportunity to affect them, if they wish, by standing for election; the opportunity for close consultation; and the opportunity for business, if the assembly and the reconstruction of the agencies into the powerhouse works well, of a decent climate. We hope in particular—I think sensibly—that the agricultural recovery that is required will be more easily facilitated if we have the assembly with devolved powers in agriculture.
      I say respectfully to the noble Lord, Lord Elis-Thomas, that Amendments Nos. 94, 107 and 155 proceed under a misapprehension that it will be for the subordinate legislation scrutiny committee to undertake and report on the outcome of regulatory appraisals. That is not in fact the intention. The flow-chart on page 33 of the advisory group's consultation paper indicates that either the assembly secretary or the relevant subject committee will arrange the appraisal, depending on whether "fast-track" or "full" scrutiny is proposed for the relevant draft order. In other words, responsibility is placed on assembly members to decide as appropriate in suitable circumstances.
      As regards Amendment No. 194D, we do not think it appropriate that the concept of "significant" costs identified by an appraisal should be illustrated by a specific and tightly drawn example such as is proposed in that amendment. I have every sympathy with the particular example, but we believe that the significance of costs needs to be looked at on a case-by-case basis and in particular contexts. We should not as a matter of principled approach try to limit the assembly's freedom of action by specific provision in the Bill.

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      Those are the comments which I offer on the amendments. They are not necessary. They are an unreasonable and rather doubting, feeble-faced approach to the powers we are giving the assembly.
      Lord Elis-Thomas: The Minister, with the able assistance of the Opposition Front Bench, has given the robust response which I probably expected. We will wish to return to the matter when we debate Clause 115 on consultation with business. I am sure that many of us believe that that represents a weak response to the issues which have been put forward by all sections of the business community.
      The noble Lord, Lord Mackay, expressed surprise that I should speak for the CBI in Wales on these matters. We in Wales are a great family and we speak with and of each other on all kinds of occasions. As it happens, I have a close working relationship with the CBI through the public-private partnership which I chair on media development. He should understand that the Left, the centre-Left and the centre-Right in Wales are one big family. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Clause 30, as amended, agreed to.
      Clause 31 [Consultation about public appointments]:
      Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 94A:
      Page 19, line 44, after ("Crown") insert (", Assembly Secretary").
      The noble Lord said: This is a simple and easily acceptable amendment. It is about the need for the Crown to ensure in making public appointments that consultation includes not only assembly secretaries but the assembly itself. It results from a concern about the appointment of public bodies which has been expressed on a number of occasions, in particular by the great Labour Party, which I love to call the party in Wales as opposed to the party of Wales. Which party becomes the party for Wales is a matter of conjecture at this time of night and a matter for election in due course. That of course includes the Liberal Democrats.
      As a result of the concern about public appointments, it is essential to state that we do not want to see the replacement of a Whitehall-based "quangocracy" with a Cardiff-Bay based "quangocracy". Assembly secretaries should not be able to appoint persons to public bodies without consultation with the assembly itself. I beg to move.
      10.45 p.m.
      Lord Falconer of Thoroton: The purpose of Clause 31 is to ensure that, as a matter of statute, Ministers of the UK Government or other persons are required to consult the assembly about appointments to public posts which relate to Wales. An example of the provision that we intend should appear in the Order in Council under Clause 31 is a requirement for the assembly to be consulted about the appointment of the BBC national governor for Wales, members of S4C and the Welsh member of the Independent Television Commission.
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      The noble Lord, Lord Elis-Thomas, explained that his amendment was designed to ensure that assembly secretaries would consult the assembly about appointments made by them. I remind him that the proposal by the National Assembly Advisory Group in paragraph 6.10 of its consultation paper—namely, that appointments to public bodies in Wales should be made by assembly secretaries—is a consultation proposal. The group has yet to present its full and final advice to the Secretary of State on this question, but I know that it is giving careful consideration to the input which subject committees might have into the appointment process.
      Finally, Clause 31 is not strictly relevant to the question of the position of assembly secretaries. The exercise of a power of appointment by an assembly secretary would be a matter to be dealt with by delegation under Clause 63. Clause 31 deals with the separate matter of powers of appointment exercisable not by the assembly but by Ministers or other persons quite separate from the assembly. In view of my response, I hope that the noble Lord will feel able to withdraw his amendment.
      Lord Elis-Thomas: I shall, of course, roll over—to use the words of the Opposition spokesman—but I should like, first, to place on record my objection to the advice of the National Assembly Advisory Group on these matters, and my concern that there will indeed be a tendency for assembly secretaries to become replacements for Welsh Office Ministers who made public appointments with or without consultation in the past, nothwithstanding the fact that some of them might have been good appointments. Therefore, I give the Minister due warning of other later amendments which would ensure that such powers should reside in the assembly rather than in assembly secretaries. Having said that, I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Clause 31 agreed to.
      Clause 32 [Consultation about government's legislative programme]:
      Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 95:
      Page 21, line 3, leave out ("such").
      The noble Lord said: I should say, first, that we on this side of the Committee will inherit the title of the "party for Wales" from a 120-year Liberal tradition in Wales. With this series of amendments; we are concerned with the role of the Secretary of State. We wonder whether the Secretary of State should consult at his own—a word I used earlier—whim the assembly in relation to the Government's legislative programme or whether, following the Queen's Speech at the beginning of a parliamentary Session, he should be required to go to the assembly and discuss with it the positive Bills that the Government are proposing here in Westminster to introduce into Parliament during the Session.
      There are echoes about Clause 32 as presently drawn of Amendment No. 67 which we discussed earlier and which was dismissed out of hand by the Minister. As he rightly said, under that amendment the Secretary of State would have been given far too wide a discretion

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      to interfere with the functions of the assembly. Clause 32 states that the Secretary of State need only consult with the assembly about the Government's legislative programme to the extent that it,
      "appears to him to be appropriate".
      Moreover, should a new Bill be introduced, he is only required to undertake such consultation as, again, appears to him to be appropriate.
      To make it absolutely clear, subsection (4) of the clause says:
      "This section does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".
      What if the assembly thinks it is a matter which should be discussed with it? What if the assembly says to the Secretary of State, "This Bill that is to be introduced into the Westminster Parliament has such implications for Wales in a way that you may not as yet have fully comprehended that we must put our representations to you. You are the link between the assembly and the Government"?
      The Government's proposals—rightly, we say—are to retain the role of the Secretary of State as a member of the Cabinet. In that Cabinet he will no doubt speak for the Welsh assembly, and when he goes to the Welsh assembly he will no doubt speak for the Government. He is the essential channel of communication. Under the Bill as presently drafted if a particular Bill raises inconvenient or embarrassing issues that he does not particularly want to have aired in Wales, it is left to him to say to the assembly, "I, in my discretion, shall not consult you at all". That would seem to us on these Benches to be entirely wrong. These amendments simply ask the Government to reconsider the position so that the assembly will have that essential channel of communication kept open in relation to all new legislation brought before Parliament. I beg to move.
      Earl Russell: The words this amendment seeks to delete seem to me an ideal example for illustrative purposes of the Cambyses clause, the clause that says the Secretary of State may do whatever he likes. The words are that,
      "the Secretary of State shall undertake … such consultation … as appears to him to be appropriate".
      It is fairly precisely a case of the Secretary of State may do whatever he likes.
      Just over two weeks ago we had a debate in this Chamber about the decline of Parliament. It appeared to me, listening to that debate, that the issue in this Chamber was which party, if any, was to be blamed rather than whether such a decline was taking place. If that is the case, this kind of permissive draftsmanship, allowing the Secretary of State an almost infinite degree of discretion, seems to me one of the things which are in part to blame. Secretaries of State should have powers and with powers should go duties. If the duties are whittled down to mere discretion, then legislation falls out of balance and the Secretary of State's powers increase where they should not.
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      The Minister has more experience of arguing about the judicial construction of Acts of Parliament than comes to most of us in a lifetime. Can he tell us directly whether this clause would permit the Secretary of State, if it appeared to him to be appropriate, to conduct no consultation whatever? If the answer to that question is yes, it follows that this amendment must be accepted.
      Lord Roberts of Conwy: The thrust of Clause 32 is clear; it is, of course, to enable the Secretary of State to discuss with the assembly the Government's legislative programme for the Session and its implications for Wales and for the assembly. There could well be a case for special provisions in legislation relating to Wales, as in a number of Acts passed in recent years. Obviously it would be for the assembly, in consultation with the Secretary of State, to ensure that such provisions were included in the proposed legislation.
      There is nothing in the Bill about any prior consultation on the intended contents of the legislative programme, or any separate legislative proposals that the assembly might have. This is the shortcoming that some of the noble Lord's amendments seek to address. The Government's answer may be that there is nothing to prevent any body, including the assembly, from putting forward legislative proposals to the party in government. Such proposals would be considered along with others from different sources. But the assembly is in a special position, being a body with legislative powers, albeit secondary, and extensive executive powers. It may therefore see a clear need for a particular piece of primary legislation which relates specifically to Wales. We have had such legislation in the past. The Welsh Language Act is a good example, and there are a number of others. I am sure that the need will arise again in future.
      The question for the Government is whether there is a need to incorporate the duty to consult on the assembly's legislative proposals in the Bill in line with Amendment No. 98. Personally, I see no harm in it, and some merit. Consultation does not give the assembly a right to a place in the legislative programme. No government will ever concede that to any body outside themselves, although the European Commission comes pretty close to it on occasions.
      Lord Falconer of Thoroton: Clause 32(1) as presently drafted places on the Secretary of State a statutory obligation to consult about the Government's legislative programme as appears to him to be appropriate. Clause 32(4),
      "does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".
      The effect of the Bill as presently drafted is that there is a duty on the Secretary of State to consult on such Bills. The consultation is to be in such form as he thinks appropriate and can be on such Bills as he thinks appropriate. It is nevertheless a statutory duty, and if he exercises his discretion in a way that is unlawful, he could be susceptible to judicial review. That is the extent of the obligation placed upon him by this subsection.

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      It is almost invariably the case that this is the way in which legislation of this sort is drafted and there is no other practical way of dealing with it. For example, it is suggested that the words, "such consultation as he thinks appropriate" should be replaced by the word, "consultation", without any indication as to what form the consultation would take. The effect of that as a matter of law would probably be precisely the same as the Bill as drafted, because it would be for the Secretary of State in those circumstances to form a judgment about what form the consultation would take.
      The amendment proposed by the noble Lord, Lord Thomas, in effect proposes that the Secretary of State would have to undertake consultation on every single piece of the UK Parliament's legislative programme—even a Bill that related only to England, for example. There are also some subjects which plainly fall outside the assembly's responsibilities. For example, taxation is dealt with through the annual Finance Bill. That is why subsection (4) of the clause allows the Secretary of State to decide that there are considerations which make consultation with the assembly inappropriate. Accordingly, the Government cannot accept Amendments Nos. 95, 97, 99, 100 or 101 because they would in effect impose an impractical and unnecessary obligation on the Secretary of State which is not necessary in the context of the arrangements.
      Moreover, in my respectful submission, the noble Earl, Lord Russell, is wrong to say that there is no content to this obligation. There is a content to the obligation. It is a statutory duty, the precise limits of which are susceptible to judicial review.
      So far as—
      Lord Hooson: I am grateful to the noble and learned Lord for giving way. Perhaps he will consider Clause 32(4), which is the most objectionable part of this provision. It states:
      "This section does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".
      Suppose we had a Secretary of State of a different political complexion from that of the assembly. What he might consider the considerations relating to the Bill which make it inappropriate for him to consult the assembly may be very different from what the noble and learned Lord has in mind here. I know that my noble friend does not intend to press this matter to a Division, but it may be necessary to return to it on Report. It seems to me that problems arise from Clause 32 as at present drafted. Can the noble and learned Lord give us an assurance that the matter will be reconsidered before Report stage?
      Lord Falconer of Thoroton: Before inviting Members of the Committee to withdraw their amendments, I can assure them that we intend that there should be full consultation with the assembly about those Government Bills which affect the assembly's responsibilities, such as education, health, housing and the environment.
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      To take up the point made by the noble Lord, Lord Hooson, the way that the clause is drafted inevitably gives an element of judgment to the Secretary of State to determine what Bills he consults upon. We think that that is inevitable if there are some Bills that should not be consulted upon and some that should. In practice, it cannot be done in any other way. I undertake to consider all that the noble Lord said about that; but I suspect that, as a matter of drafting technique, this is the only practical way to do it.
      Lord Hooson: I am most grateful to the noble and learned Lord for giving way. I am sure that he is not right about this. I have no doubt that the Government, in their present frame of mind, intend that this clause should provide the consultation that is indicated. What I am concerned about is whether in future the form of words used here will ensure that that consultation takes place.
      Lord Falconer of Thoroton: I fully understood what the noble Lord said. I will certainly think about it, but to some extent I stand by the remark that I made. I hope that, in the light of the explanations that I have given and of my undertaking to consider what has been said in relation to the matter, Members will withdraw their amendments.
      Earl Russell: I am most grateful to the noble and learned Lord for a carefully considered reply, to which I listened with a great deal of care. The question is not, as my noble friend said, about intention. Always the question on this type of issue is about the vires which are being created and left behind. I was particularly interested in what the noble and learned Lord said about judicial review. I should be grateful if he could fill that out a little more. Is that judicial review of which he speaks under the Wednesbury principle? If it is, that gives us some grounds for considering what issues it might apply to. The Secretary of State might consider it inappropriate to consult, for a great variety of reasons. Suppose, for example, an English nationalist majority appeared at Westminster and decided to repeal the Welsh Language Act and thought it inappropriate to consult the Welsh assembly on that matter. Would that be Wednesbury unreasonable?
      Lord Falconer of Thoroton: It would be wholly wrong for me to express off-the-cuff views in relation to what may or may not be Wednesbury unreasonable. I go back to the first question that the noble Earl asked as to the kind of principles that would apply in relation to judicial review. They would be the normal principles that would apply to the exercise of a statutory discretion by a Minister such as the Secretary of State. They would normally include the obligation on the part of the Minister to act in accordance with a Wednesbury degree of reasonableness. As we indicated earlier, they would require that the person who brought the proceedings had some adequate locus to bring those kinds of proceedings.
      I fully appreciate that intention is not the issue that is raised in principle by the noble Earl or the noble Lord, Lord Hooson; it is a matter of what is the detailed extent

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      of the obligation. I think it would be inappropriate for me to go any further at this stage than to say that the ordinary principles of judicial review would apply, which is in a sense the answer to the point that the noble Earl made. I cannot remember exactly how he put it, but it was to the effect that this provision means that the Minister can do what he likes. I believe that that is a totally inaccurate statement of the effect of the imposition of a duty such as this.
      Lord Thomas of Gresford: Even though this may shock the noble Lord, Lord Mackay of Ardbrecknish, this is an occasion when, as Ministers may understand, we do not propose to "roll over".
      It seems to me that this is an important matter and that the answers given by the noble and learned Lord are, at the moment, wholly inadequate. The noble and learned Lord may have overlooked the fact that an unusual and novel situation is proposed in the whole framework of this Bill—I referred to it at Second Reading—namely, that the Westminster Parliament remains responsible for primary legislation and the assembly is confined within that primary legislation in the making of secondary legislation. It is not as though the Welsh assembly will have a free discretion to make whatever secondary legislation it likes. It is confined to the policy laid down by the primary legislation. It is therefore inconceivable that on any matter involving primary legislation in relation to the areas of responsibility of the assembly, the relevant Bill could be introduced into Westminster without the assembly's views having first been sought.
      It is important that the Government should grasp the principle that, from now on, every Bill which affects the responsibilities that have been devolved to Wales, every piece of primary legislation is in itself a devolution instrument. It has implications; it sets out the limits, the policies within which that secondary legislation can take place. Even when one gets to the spheres of policy which have been reserved to the Westminster Parliament—matters of defence, foreign affairs, social security, taxation and so forth—the assembly will have a view. It may not have any power to make secondary legislation, but there will be representatives elected by the people of Wales with a specific view to pass to the Secretary of State. For the Secretary of State simply to have a discretion, as my noble friend pointed out—under subsection (4) he is not required to consult the assembly if he considers it inappropriate to do so—is entirely inadequate.
      To turn to the judicial review aspect of the matter, suppose the assembly were to judicially review the Secretary of State—a difficult concept—and say, "You have not consulted with us". The matter may go before the judge and the judge may ask what are the specific powers set out in the Government of Wales Act which has been through Parliament. When he looks at it he will see that the Secretary of State does not necessarily have to consult. What is the touchstone? It is not whether he is acting reasonably or unreasonably; it is whether he thinks that it is inappropriate for him to do
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      so. The Bill will answer any judicial review that is based upon Wednesbury unreasonableness principles and there will be no answer to it.
      I have to say to the noble and learned Lord the Solicitor-General, that this Bill is not properly drafted. I know that the intentions are good but the phraseology must be looked at again. It must be redrafted to firm up the duty of the Secretary of State to consult. He will not be an adequate channel between the assembly and the Westminster Parliament if it is left in this way. We will most certainly return to this issue on Report, but for the moment I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 96:
      Page 21, line 3, at end insert ("and the Assembly's legislative proposals").
      The noble Lord said: This represents the reverse of the process which has been so admirably proposed by my noble friend Lord Thomas of Gresford from the party for Wales, as I shall now always call it. It provides that the Secretary of State should have regard to what I term in Amendment No. 96, and later in Amendment No. 98, as the assembly's legislative proposals. I tabled this amendment following the instigation and spiritual support of the noble Lord, Lord Mackay of Ardbrecknish, who, with his usual customary wit and intelligence, picked up in the course of my Second Reading speech some attempt to construct a form of primary legislative fast-track procedure at Westminster which might deal with any issues arising from the delegated legislation activity of the national assembly. I am looking forward earnestly to having his strong support and that of his noble friend on these two amendments.
      We are seeking a way of ensuring that the assembly is able to propose aspects of primary legislation to government so that there is a two-way process. What I indicated clearly at Second Reading was misinterpreted by some of my political critics inside my party, of whom I have few—at least two. They seem to imply that I have become unionist. I have been called many things in my political turnarounds, but never a unionist. In this sense I am a unionist. On Second Reading I was not seeking to institute proceedings which would transfer to Cardiff Bay greater legislative powers beyond the delegated legislation. I was seeking to look for processes at Westminster which would become the primary legislative body in relation to any issues which might arise out of Cardiff deliberations on delegated legislation and which might require further primary legislative activity.
      I mentioned one in particular which is of concern to me as chairman of the language board; namely, the question of the registration of births that occur over the border in Wales where bi-lingual registration does not apply. I hope that we can deal with that at some stage, perhaps in the next session of Parliament, with government support.
      In moving these amendments I am looking for the possibility of using the amended structure of the Welsh Select Committee or the Welsh Grand Committee or a

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      special standing committee structure—or whatever applies in another place—and a parallel structure here to deal with these matters so that there will not be a logjam in Westminster as regards primary legislation. It would be dealt with by elected members from Wales. It would obviously not be approved as primary legislation by both Houses of Parliament except by a majority of the Government of the day, otherwise it would not be possible. These would obviously not be aspects of controversial legislation that would be dealt with. They would provide for Westminster to be able to deal with that unique dimension as has been pointed out by my noble friend Lord Thomas of Gresford, that we are creating a national assembly whose role is delegated legislation but where the primary legislation still resides in the Palace of Westminster. That has to be dealt with.
      Although I did not speak in order to save time, I support fully the earlier set of amendments. There is clear consultation on the Government's programme on a whole range of primary legislation which will have an effect on the assembly. That is absolutely essential. I shall certainly support any amendments that may be moved at a later stage on that issue.
      There is another side of the process; namely, that the assembly may be able to instigate changes of a non-controversial nature and that they may be dealt with as primary legislation in this House.
      I ask the Government to take away these amendments and consider them, even if they cannot instantaneously accept them. I know they have the support in spirit of the noble Lord, Lord Mackay of Ardbrecknish. I beg to move.
      Lord Prys-Davies: I support this amendment. I was in support of Amendments Nos. 95 and 97, although I did not speak due to the late hour. I am sure that the consultations under Clause 32 should be two way. We have heard from the noble Lord, Lord Thomas of Gresford, that in a system of executive devolution which requires the separation of primary legislation and execution, upon which this Bill is based, then the day-to-day management of the government of the assembly will certainly show from time to time the need for new primary legislation or for amendments to it. A matter which at the outset seems to be one calling for a minor adjustment of policy may grow into a question which requires primary legislation or the amendment of primary legislation.
      The clause as it stands is defective because it proposes a duty on the Secretary of State only to consult the assembly upon the legislative programme which he has in mind. But the clause should impose a corresponding duty on the Secretary of State to have regard to the requirements of the assembly for new primary legislation or amendments to legislation. I very much hope that the Minister will give careful consideration to the amendment moved by the noble Lord, Lord Elis-Thomas.
      11.15 p.m.
      Lord Roberts of Conwy: In speaking to the previous group of amendments, I inadvertently gave my support to Amendment No. 98. It is being dealt with separately now but I reiterate that support. It seems to be perfectly legitimate for consultation to take place with regard to any legislative proposals that the assembly may have. Being a legislative body, albeit one concerned with secondary legislation, the assembly will be in a very good position to anticipate the need for primary legislation. That matter should be discussed with the Secretary of State.
      It is quite clearly necessary for the Secretary of State to consult the assembly as soon as the Government's legislative programme has been outlined in the Queen's Speech. At that stage Bills have very often not been fully prepared and there may well be a need, which the assembly will recognise, for special provisions relating to Wales. It is surely proper that there should be an opportunity for the assembly to bring the need for such provisions to the attention of the Secretary of State.
      Lord Falconer of Thoroton: The extent of the commitment made in the White Paper about the assembly was that the Secretary of State would be under a duty to consult about Parliament's legislative programme. That undertaking is delivered in the present draft of Clause 32. What the noble Lord, Lord Elis-Thomas, is proposing is that the Secretary of State should also be obliged, in effect, to consult about the assembly's proposals for legislation by Parliament. He is saying that it should be a two-way process, with the assembly coming forward with proposals for Parliament to legislate, whether by way of primary legislation or by way of primary legislation to amend existing Acts, or, presumably, Bills in the process of going through the Houses of Parliament. I do not quite know how one would know what amendments to propose if one did not know what the Bill proposed, but that is a moderately minor point.
      Both the noble Lord, Lord Elis-Thomas, and the noble Lord, Lord Prys-Davies, raised the prospect of a situation arising where the assembly in its deliberations—for example, in relation to secondary legislation—thinks it appropriate to propose amendments to primary legislation. I respectfully suggest that the appropriate way for the assembly to seek to influence legislation at Westminster in those circumstances would be for it to use its powers in Clause 34 of the Bill. It states:
      "The Assembly may consider, and make appropriate representations about, any matter affecting Wales".
      The assembly could make appropriate representations to whomsoever it chose about any Bill before Parliament affecting Wales, whether or not that Bill related to the fields in Schedule 2. Those representations might include suggested amendments which could be published or sent to the Government Minister or to any Member of this House or the other place. Obviously, it would be for the Government or Parliament, as the case may be, to decide what, if anything, they wished to do in the light of the assembly's representations.

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      As to the assembly drafting whole Bills, which appears to be contemplated by the amendments, if the assembly were seeking to argue that some specific, new legislative proposal provision should be enacted for Wales, that would most satisfactorily be put forward in a policy document, again using the powers in Clause 34 rather than in a draft Bill. If the government of the day were to take up such a suggestion from the assembly they would clearly wish to have their own Bill drafted by parliamentary counsel, as now.
      In the light of this response I hope that I have persuaded the noble Lord that the assembly will be able to make its views heard on primary legislation and that he will withdraw his amendment.
      Lord Elis-Thomas: The breadth of support for this amendment from the Conservative Benches and from the Party for Wales, from the noble Lord, Lord Thomas, and from the noble Lord, Lord Prys-Davies, indicates that I should withdraw the amendment this evening. However, it seems to me that this matter needs to be explored in the context of both Clause 32 and Clause 34.
      I do not believe it is satisfactory that legislative proposals coming from a body which itself will be producing delegated legislation should be regarded as appropriate representation about matters affecting Wales, as set out in Clause 34. Therefore, although I appreciate the point made by the noble and learned Lord the Solicitor-General that this represents a way in which the assembly can take action of this kind, it does not seem to me satisfactory. I thank Members of the Committee at this late hour for their support and I give notice that this is a topic we shall need to return to. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 97 to 101 not moved.]
      Clause 32 agreed to.
      Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 102:
      After Clause 32, insert the following new clause—

      CONSULTATION ON COMMUNITY MATTERS
      (" .—(1) Before a meeting of the Council of Ministers of the European Communities, the Secretary of State shall undertake with the Assembly such consultation about the government's negotiating position as appears to him to be appropriate.
      (2) As soon as is reasonably practical after the conclusion of a meeting of the Council of Ministers, the Secretary of State shall provide a report to the Assembly on any matters arising in such a meeting affecting Wales.
      (3) This section does not require the Secretary of State to undertake consultation with the Assembly about the government's negotiating position if he considers that there are considerations relating to the negotiations which make it inappropriate for him to do so.").
      The noble Lord said: I am sorry that we come to this important amendment so late in the evening, but I make no apology for moving it because it is very important. It is important for Wales, for Scotland and for other legislation. It will be important, in time, for Northern Ireland. It concerns the relationship between these
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      subordinate legislatures and governments and the all-important, in many respects, Council of Ministers and meetings within the European Union.
      Although the amendment in the name of my noble friend Lord Crickhowell discusses any meeting of the Council of Ministers, I shall use as my worked example, so to speak—and the most important, too—the detail affecting everyday life of many people working in Wales. I refer to agriculture through the common agricultural policy and fishing through the common fisheries policy. These two subjects are to be devolved. We discussed them earlier. I have no problem about their being devolved in part. I have no problem about the assembly debating these matters. I am sure we could find certain parts of agriculture that could easily be devolved to the assembly which are not totally entwined with what the Council of Ministers decides in Brussels.
      I am genuinely concerned that the most vital aspects affecting farmers and fishermen in Wales will be decided by a UK Government Minister responsible to the UK Parliament and its Members and without any answerability for policy outcomes in Wales. I understand that preliminary discussions can go on. They do at present between the Welsh Office and MAFF. Agreed positions are arrived at, often at official level. Often it is more the order of importance attached to each issue rather than the issues themselves which have to be decided at ministerial level and, just occasionally, at Cabinet level. Debates can be, and are, held in the other place, in which MPs from Wales and England can argue the case for their farming and fishing constituents with the Ministers who will negotiate in Brussels.
      The MAFF ministerial team then goes to Brussels with or without a Minister from the Welsh Office. I grant that it is quite a long time ago now and my memory could be getting dim, but I cannot recall ever going to a Fisheries Council—I attended every one while I was a Minister at the Scottish Office—at which a Minister from Wales was part of the team. Therefore, I think that I can say that most frequently the ministerial team will go to Brussels without a Welsh Office Minister. That may not be the case so often with regard to agriculture. No doubt the noble Lord, Lord Williams of Mostyn, will tell me how many times that happens, but I am pretty certain that it is a fact that they do not go very often.
      Deals are done at those meetings; votes are taken; and the team has to decide whether or not to sign up to a package. Such deals are often done in the middle of the night. I must warn the Committee that in Brussels this hour would be considered quite early in the evening. There is seldom, if ever, any opportunity for elaborate consultation back home. Anybody one wishes to consult is fast asleep in bed back in Britain. Frequently, the real problem is that one has to judge the outcome against one's initial wish list. It is often a difficult balancing act to decide whether, if one continues negotiations, one will get any more and whether one has got the best deal possible, often judging the interests of one part of the country against another, with a little bit being given here and a little bit obtained there.
      I have no doubt that just occasionally over the years that this operation has gone on some Welsh Ministers have been less than satisfied with the outcome, but everyone in government had signed up to it. Ministers from MAFF and the Welsh Office backed the deal and usually said that it was an excellent outcome. I hear the same words from this Government as I remember that we used to use when we were in power. There must be a little dictionary giving the quotations used to explain, "This is the best possible deal in the best of all possible worlds". Ministers then stand shoulder to shoulder in defence of the deal.
      As I understand the future, we are to have concordats which will mean that Welsh Ministers—Welsh "secretaries", as they are to be called—will have discussions with MAFF, no doubt preceded by discussions at official level. I have no doubt that most of the time agreed positions will be arrived at—but not always. Just occasionally there will be a difference on the policy or, more importantly, on the place of the policy objective in the order of priorities in the negotiations.
      Who resolves those issues? Let us assume that the weight of MAFF carries the day. Is the Welsh assembly Minister bound by that decision? What about the MPs and the members of the Welsh assembly? I note that both can debate such matters, but will a Welsh MP be able to raise issues about agriculture, which is devolved, in the other place without Madam Speaker saying the equivalent of—not that she would ever be so common—"Nothing to do with us, guy"? Even if Madam Speaker allows the debate, will the MAFF Minister feel obliged to respond to a purely Welsh question or will he say, "Nothing to do with me, guv"?
      Then there are the negotiations and the outcomes. The outcome will be decided by MAFF Ministers. A Welsh assembly official may be present. I believe that the noble Lord, Lord Elis-Thomas, seeks that in his related amendment. The Welsh assembly official may complain, but the MAFF Minister could be forgiven for thinking, "So the Welsh won't be happy; see if I care. I don't have to answer for Welsh agriculture in the Commons. It is devolved. I don't have to go to Cardiff. The poor sod who answers in Cardiff will just have to like it or lump it"—and the poor sod who answers in Cardiff will have to do just that because if we are to believe the White Papers leading up to these Bills, the concordats will have bound him to a collective decision even if he had no real part to play in the last act in the drama in Brussels.
      Noble Lords may be wondering about the Secretary of State for Wales, believing that because he is in the UK Government, he can influence decisions. I do not believe that he can because he has no responsibility for agriculture or fishing. The matter has been devolved, so even if he tries to intervene he does not have a locus standi.
      I hope that I shall not be told that the Welsh assembly secretary may go to Brussels and negotiate in the Council of Ministers. I just do not believe that that can happen. No MAFF Minister will ever hand over the
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      negotiating reins on behalf of the whole of the UK, in particular the large English agriculture interest, to someone with no responsibility for that interest who is not answerable to English MPs down the corridor. The Government Front Bench lives in Cloud-cuckoo-land if it holds that belief.
      This amendment gives the Secretary of State a full role in those important matters. He consults and reports to the assembly but the details of the agreed position in the negotiations and the outcome are for him to discuss with his ministerial colleagues inside the same government. As he will have played a key part in the decision-making he will be answerable to Welsh MPs down the corridor and, through them, to the Welsh people. In addition, as subsection (2) makes clear, he will be responsible and answerable to the Welsh assembly.
      Amendment No. 103B in the name of the noble Lord, Lord Elis-Thomas, addresses much the same issues, although it widens the scope a little beyond the Council of Ministers. I shall be interested to hear the discussion on the Committee of the Regions. This is an important point. Up to now people who have been sent to the Committee of the Regions have come largely from local government. That is true in Scotland and Wales. Perhaps that is in part the reason for the noble Lord's amendment. One wonders what the Government believe will be the future there. Will people from the assembly go there while local government is cut out, or will it be a combination of the two? Looking at Amendment No. 103C, that appears to be what the noble Lord is after. He has my support in that objective.
      I firmly believe that the Bill exposes Welsh agriculture and fishing to a situation in which those interests can very easily and quickly be sidelined unless they concur with the wider English interests represented by MAFF. Those noble Lords who have had dealings with MAFF will be aware that it is a very powerful Ministry, particularly its agricultural sector. It carries all the big cards in these negotiations irrespective of what government are in power. We cannot rely just on concordats to ensure that Welsh agriculture and fishing are properly looked after in critical negotiations on the CFP and CAP in Brussels. I beg to move.
      11.30 p.m.
      Lord Elis-Thomas: I thank the noble Lord, Lord Mackay, for introducing the European debate in what I understand to be the early afternoon in Brussels. Amendments Nos. 103B and 103C, the latter being a starred amendment which was a later thought on a similar theme, propose a way to ensure representation on ECOSOC and the Committee of the Regions based on a combination of representatives of the national assembly and local government and consultation arrangements between the Secretary of State and the assembly's secretary. I should like to hear from the Government how they foresee the consultation and nomination procedures. Although clearly the assembly will have the means of indirect election, I understand that the appointments will be a matter for member state governments. Therefore, the Government will have a

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      view on the role of the Secretary of State in relation to nominations from the assembly and/or local government.
      As the noble Lord has indicated, Amendment No. 103B has a wider remit. It deals with officials attending the Council of Ministers, representatives of ECOSOC and the Committee of the Regions and the scrutiny of assembly proposals by the assembly. We may return to the scrutiny issue at a later stage. Not this evening, but at another Brussels hour we will have the opportunity to debate the question of a European committee of the assembly.
      On assembly representation in the EU, the National Advisory Group—I hesitate to criticise its reports because the distinguished noble Viscount, Lord St. Davids, who sensibly is not with us at this late hour, is a member of that committee and no doubt is preparing for another meeting of that group—suggested that the first secretary should represent the assembly in EU matters. I should have thought that the first secretary would have plenty to do at home, answering the detailed questions of assembly members who are keen to find out what the executive committee is up to in its meetings.
      There is a strong case—this brings me to the speech of the noble Lord, Lord Mackay of Ardbrecknish—for example, for the agriculture, countryside and agri-environment secretary—whatever the title might be, because it might be the sustainable development secretary—of the assembly to be the regular European secretary who attends meetings of the Council of Ministers and other European meetings.
      One could argue that other departments' secretaries, such as culture secretaries, might be able to perform a similar task. I believe that it is a task that the noble friend of the Lord, Lord Mackay, has performed at least once when the Welsh Office took the lead in a European Council meeting on the subject of minority languages. That is clear from the fourth report of the Welsh Affairs Committee of the other place 1994–95. I cannot believe that that person who was leading on minority languages could possibly have been other than the noble Lord, Lord Roberts of Conwy.
      Lord Roberts of Conwy: It should be said that the person involved was a senior civil servant.
      Lord Elis-Thomas: Can the former Minister confirm that he did attend as Minister of State an informal council on regional policy in November 1993?
      Lord Roberts of Conwy: Yes.
      Lord Elis-Thomas: We are getting somewhere. We now have it established that a senior Welsh Office official led, at official level, a debate on minority languages—obviously that is something that I endorse fully, although I do not endorse the term "minority languages"—and that the Minister of State attended an informal council on regional policy. So we are there already. The noble Lord, Lord Mackay, shakes his head. I know that he will say that we are not leading the negotiations. These things do not work in that way. He
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      knows full well that European Councils, in terms of formal votes and so on late at night, are part of the proceedings but that most of the work goes on in the serious discussions beforehand.
      Clearly the national assembly will be represented there, both through UKREP and the input into the relevant European interdepartmental committee of the UK Government. It is important to put this in the overall European context. We are dealing with a flexible and moving scenario of European representations by regional Ministers.
      I am surprised that in our debates no mention has been made—I shall not go into detail—of the constitutions of the Federal Republic of Germany and the Belgian state, or the diverse and wonderful arrangements that our colleagues in Catalonia manage to derive through their continuing relationships with parties of various hues in Madrid and elsewhere. We are dealing with a moving picture of European representation both at official and ministerial level. Whether it is in the formal sense of the federal state structure or the more asymmetrical form of autonomy in the Iberian peninsula, which is much more like what is emerging in the UK, those are facts of political life. Therefore I am certain that the national assembly will be able to devise its various strategies for operating as a serious partner at the European level in the formal sense as well as in the existing less formal contacts we have through the procedures instituted by the noble Lord, Lord Roberts of Conwy. I see that the noble Lord, Lord Mackay, is getting excited.
      Lord Mackay of Ardbrecknish: I can understand why and how a senior civil servant from the Welsh Office, who was a senior civil servant of the British Government, could take a lead on an issue peculiar to Wales (if I may use that word in its nicest sense of minority language) which does not have a great deal of English interest. The Scottish Office must have been content to allow the Civil Service to bat on behalf of Gaelic as well.
      However, as regards fishing and agriculture, while I accept that theoretically there may be occasions when the issue before the Council of Ministers may be one entirely contained within Wales, I cannot envisage those circumstances. Therefore it will be a UK problem which is developed and explored in the Council of Ministers. That is where I do not believe that a Minister from the Welsh assembly could speak for the United Kingdom. That is my problem.
      Lord Elis-Thomas: I see that his unionism excites the noble Lord at this stage of the evening.
      I can well envisage that a UK government of whatever colour might decide that the secretary for agriculture, countryside, agri-environment and sheepmeat, of the national assembly for Wales, might be the appropriate person to take a lead role on that issue in terms of reform of the common agricultural policy. I can well imagine that a UK Government might decide that on agri-environment initiatives and the development of national parks it would be appropriate for the secretary from the national assembly to lead in European

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      Union debates on behalf of the UK. There are no national parks in Scotland; and the national parks in England are part of one happy family with Wales.
      For the noble Lord, Lord Mackay, to suggest that somehow secretaries of the national assembly for Wales are less competent to speak on the European level, and less able to lead on an agreed UK line than Ministers of the UK Parliament does a grave disservice to the partnership arrangements between the Parliament and the national assembly.
      Lord Mackay of Ardbrecknish: The noble Lord must not put words into my mouth. I do not doubt for a moment that they might be perfectly able to lead from an ability point of view, and know all about their subject. I question the issue from the constitutional position. It is a Council of Ministers of the member states of the Union. The member state is the United Kingdom. The Minister we are envisaging, no matter how able, is not a Minister of the United Kingdom. Perhaps I am making a mountain out of a molehill, but I think that it is a serious problem and no one has answered me properly.
      Lord Elis-Thomas: This is my final riposte to the noble Lord. Other member states make specific arrangements. I said that I would not involve myself in the federal position in Belgium. But arrangements are made there. There are four or five categories—I forget how many—of Council ministers. The mix depends on which region leads on which subject.
      Many arrangements are possible within a devolved structure. The Scottish parliament has precisely the same relationship with the European Union as the national assembly will have, except possibly in the area of legislation. It could be argued that Scottish Ministers could debate legislation directly whereas national assembly Ministers might not on primary legislation. Apart from that, relationships are similar. On reflection, I am sure the noble Lord will concede that his unionist tendencies have overtaken his judgment.
      Lord Falconer of Thoroton: This is an important debate. The nub of Amendments Nos. 102 and 103C is the role the assembly will play in discussions on EU matters in the United Kingdom and with EU institutions.
      In respect of Amendment No. 103B spoken to by the noble Lord, Lord Elis-Thomas, as I explained earlier, the Government do not believe that it is appropriate for concordats to have the force of law, or for the detail to appear on the face of the Bill.
      Both amendments seek to explore the level of representation that the assembly will have in Europe. The Government's position is that the assembly will play a direct role, but that it is not appropriate for that to be dealt with on the face of the Bill.
      I readily acknowledge the extensive personal knowledge of the noble Lords, Lord Roberts and Lord Mackay of Ardbrecknish, on how both the Scottish and Welsh Offices operated within a unitary government. I hope that they will accept that in this Bill
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      we are dealing with an entirely different internal constitutional background. We do not consider it appropriate to put that in the Bill. It is an attempt to write into legislation the role that the assembly will play in discussions on EU matters in the UK and with EU institutions. That can be handled much better by agreed arrangements, if necessary through concordats, with government departments which will be prepared in due course. The UK Government will continue to have overall responsibility for foreign policy, including issues arising from membership of the EU. That is plain, too, in the drafting of the Scotland Bill.
      The noble Lord, Lord Mackay of Ardbrecknish, slithered between two different positions. First, when he was taking his fisheries example, he was talking about practicality. But then the noble Lord, Lord Elis-Thomas, was politely interrupted by the noble Lord, Lord Mackay, saying that constitutionally there would be a difficulty about somebody from the assembly speaking in the Council of Ministers. Then in the course of the debate the noble Lord, Lord Roberts of Conwy, confirmed that a senior official from the Welsh Office, or possibly himself, had spoken in the Council of Ministers on a Welsh language issue. Taking that as an example, if a Welsh language issue is raised by an EU institution, the representative at the EU institution is plainly a representative of the UK Government. But there is nothing wrong with the UK Government saying that the obvious and most appropriate person to speak on behalf of the UK Government, which is the player in foreign policy terms, is somebody from the Welsh assembly. That particular issue has been transferred to the assembly.
      I see neither practical difficulty in that case nor any constitutional difficulty, so long as it is remembered at all times that the relevant player in foreign policy terms is the UK, because it is a member of the EU.
      Lord Mackay of Ardbrecknish: If the noble and learned Lord will forgive me for repeating his expression, I believe that he slithered neatly from the position of a civil servant, an official, albeit of the Welsh Office, who is of the United Kingdom service taking the position on the front desk. Civil servants do take positions in place of Ministers, especially during election interregnums in a country where there is no government, as occasionally is the case with some of our European friends, thanks to proportional representation. They have to be represented by officials, but they are officials of the member state's government.
      The official who represented the UK perhaps came from the Welsh Office but he was a UK civil servant. I understand that civil servants who work for the Welsh assembly will still be UK civil servants. I suspect that there may not be such a problem about them, but is the Minister saying that assembly members will be civil servants in some capacity and that they will be able to represent the UK in the same way as a civil servant? I believe that that is a bit of a slither.
      Lord Falconer of Thoroton: It is obviously my fault for not making myself sufficiently clear to the noble Lord. The starting point is that the UK is the member of the EU. The UK can choose who is the most appropriate person to

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      speak for the UK, 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 who would be in a parallel position to that in which the noble Lord, Lord Roberts, found himself when he was speaking on behalf of the UK in relation to the UK government.
      With the greatest respect, I should point out to the noble Lord, Lord Mackay, that he was slightly muddying the waters by bringing in the idea, which is entirely accurate, that the civil servants serving the Welsh assembly and the assembly secretaries will be members of the Home Civil Service. If a civil servant serving a secretary from the Welsh assembly goes to such a meeting, he will do so on behalf of his Welsh assembly secretary.
      Surely the critical point raised by these amendments is whether there are situations where an assembly secretary can attend and speak on behalf of the UK Government. If the UK Government, which means the national government, agree, the answer is yes, he or she can. The noble Lord, Lord Mackay, reacts as though that were some great concession. It has never been any part of the arrangements, other than those for foreign policy which includes EU policy. It is for this Parliament and not for the Welsh assembly. However, that does not mean that the Welsh assembly has no part to play; indeed, as I have indicated, that could include representation subject to the agreement of the UK Government.
      Clause 109 of the Bill makes clear that the assembly will have a duty to ensure the implementation and enforcement of Community obligations in Wales, to the extent that it has the power to do so. There is no doubt, then, that the assembly will have a direct interest in the effects of a wide range of EU legislation.
      The assembly will be able to scrutinise European Union documents and proposals and respond to them. Clause 34 makes clear that it has the power to consider and make appropriate representations on any matter that affects Wales. Its powers under Clause 33—to support culture and so forth—and under Clause 41—its supplementary powers—may also be relevant here. Of course, the Government intend to enable the assembly to implement European law under Clause 30.
      The assembly will be involved in discussions that decide the UK negotiating line on those proposals, to the extent that they fall within its remit—for example, on agriculture and on the environment. There will need to be close liaison between the assembly and government departments to ensure that the assembly's views are fed into UK policy formation on Europe and are taken into account during negotiations in the Council of Ministers and working groups. The Government are committed to that end.
      As I have already said, assembly secretaries will be able, subject to the agreement of the lead UK Minister, to take part in relevant policy negotiations at the Council of Ministers and to speak on behalf of the UK.
      Amendment No. 103C would impose on the Secretary of State and the assembly who should and should not be represented on the Committee of the Regions and would require the Secretary of State to consult the first secretary about representation on the Economic and Social Committee. The Bill already contains provisions
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      to allow members of the assembly to be members of the Committee of the Regions, but we do not believe that it would be right to prescribe on the face of the Bill who should and should not be nominated.
      Amendment No. 102 is inappropriate in the Government's view because it would give an intermediary role to the Secretary of State when the intention is that the assembly will deal directly with the relevant government departments on these European matters. As the noble Lord, Lord Mackay, knows, the Government envisage the same arrangements for the Scottish Executive.
      Whether or not assembly secretaries form part of the UK delegation at meetings of the Council of Ministers, arrangements will be made for them to know the outcome of those discussions which are relevant to the assembly's responsibilities. Again, in relation to that exchange, there is no need to interpose the Secretary of State.
      Apart from the channels that I have mentioned, we also have to bear in mind that the assembly will have open to it various means of exerting influence in other ways. The assembly may well choose to have its own representative office in Brussels. I imagine that it will want to maintain close links with the Welsh Members of the European Parliament. Assembly members will, from 2002 onwards, be able to represent Wales on the Committee of the Regions. These and other routes of influence will be available to the assembly.
      I believe that Amendment No. 102 fails to recognise the new constitutional landscape. It suggests that the only way of dealing with business is the present system, with decisions on these matters taken by the UK Government alone, while the new devolved administrations are left on the outside with the crumbs of being consulted beforehand and being told after the event what has transpired. That, I believe, does not reflect the political dynamic of the constitutional changes that the Government are putting in place. In view of my response I invite the noble Lords to withdraw their amendments.
      Lord Stanley of Alderley: I would not wish the discussion on this amendment to be concluded without my saying how important my noble friends' amendment is as regards agriculture. I think—I only think at this stage of the night—that the noble and learned Lord added a little to my understanding of the position, but I shall with my advisers read carefully the whole of this debate before the next stage. As I said, the amendment is vitally important to agriculture.
      Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for his response. He clarified a little what the Government hope will be the position. However, I am still less than convinced that if I were a Welsh farmer I would be entirely satisfied with that. The noble and learned Lord suggested that I was somehow a little old fashioned as I wanted decisions taken by the UK Government alone. The point is decisions are not

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      taken by the UK Government alone; they are taken by 15 governments, and perhaps more in the future. Decisions are often taken at this time of night and later. It is not the preliminary position that bothers me too much, although to be honest I think the Ministers on the Front Bench opposite do not quite appreciate how important and powerful a central UK department—with the might, for example, of English agriculture behind it—can be when dealing with what are called the "territorial" departments. Perhaps that is just the experience I had in government, but when I listen to the current Minister of Agriculture, Fisheries and Food I am pretty certain that he does not bow too often to his territorial friends and that he takes a pretty robust view of his senior and leading role.
      These decisions are taken in the Council of Ministers and by the Council of Ministers. That is what really bothers me. When we discuss the Scottish Bill I shall discuss the Scottish Ministers and the Welsh Ministers. I have spoken for the United Kingdom on fisheries matters with no MAFF Minister beside me. I have spoken on matters which involved Scotland, Wales, Northern Ireland and England. I was welcomed back with a full creel by the fishermen, at least in terms of the total allowable catch. Whether they transferred the total allowable catch into real fish and creels, I am not sure. I was able to speak in that way because I was a member of a United Kingdom government. My noble friend Lord Roberts was at the meeting which has been mentioned because he was a member of a United Kingdom government. Perhaps I am being a little stupid and not grasping the nuances of the noble and learned Lord, but I am worried that the secretaries of the Welsh assembly will not be considered members of the United Kingdom Government. That is the problem.
      However, I do not think we shall make any great advances on this matter tonight. I shall read what the noble and learned Lord has said. I leave him with one request. Through much of this argument has run the suggestion—although the noble and learned Lord did not mention it—that if we considered the Council of Ministers we would see circumstances in which Ministers from the German Länder or Ministers from the various regional governments of Spain have attended meetings of the Council of Ministers and have spoken and voted on behalf of the member state on issues which affected the entire member state. I would be deeply grateful to receive a letter—a copy of which could be put in the Library—indicating instances where this has happened.
      I do not refer to instances where there has been a peculiar issue before the Council of Ministers relevant only to that particular region or Land, but where the Minister from a Land, from Catalonia or wherever it is, has actually represented the whole of Germany, the whole of Spain and interests far beyond his boundaries. I should be interested to see examples of that actually happening in the Council of Ministers. I do not refer to informal ministerial meetings but formal Council meetings where decisions are made. It would go some way to help me and, I suspect, many other people in agriculture and fisheries if I had concrete examples of
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      that happening. I hope that the Minister might be able to send me a letter giving some examples between now and Report stage.
      12 midnight
      Lord Prys-Davies: Before the noble Lord withdraws the amendment, I wonder whether he is not missing the point. It is not that the assembly secretary will be a member of the UK Government. Of course he will not be. But he will be a representative of the UK ministerial team and, as such, will be authorised to commit the Government of the UK. The authority for that, apart from what we have heard from the noble and learned Lord the Solicitor-General, is also to be found in Article 146 of the EC treaty as amended by the Maastricht Treaty. That makes it abundantly clear that a person such as the assembly secretary can represent, and commit, the UK Government provided that he has the authority of the lead department.
      Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for his intervention. I am interested, and therefore I shall no doubt be given lots of examples of Council of Ministers meetings, especially in agriculture and fisheries, which are the two most important ones so far as concerns rural life in Wales, where Ministers from, for example, German Länder actually represented their government on an all-German issue and cast that government's votes if the matter came to a vote. I shall be very interested to read that, and it might go some way to persuade me that this may not be as bad a deal for Scottish and Welsh agriculture and fisheries as I sometimes fear. I look forward to the letter which I hope will come to me before Report stage, when one way or another we shall return to this issue.
      Lord Thomas of Gresford: Perhaps I may ask the noble Lord whether it is necessary, for the purpose of calming fears in the agricultural community in Scotland and Wales, that there should be examples of Ministers of Länder, or from regional governments in Spain or wherever, representing the whole of their country as opposed to the regions for which they are responsible, but representing that region—for example, in Wales, obtaining Objective 1 status or making representation on that account. Are we not interested to know whether Ministers from regional governments have, with the consent of their national governments, been able to put forward regional issues?
      Lord Mackay of Ardbrecknish: I am happy to enlarge my request. However, my real point still is—and I do not think the noble Lord, Lord Thomas of Gresford, has quite grasped it—that all of the negotiations in which I ever took part involved all the constituent parts of the United Kingdom. Sometimes there were minor players; sometimes the issues were major ones. But it was an all-UK issue. So it was not merely a case of me, in my capacity as a UK Government Minister, speaking for Scotland; I was speaking about fishing issues in relation to Wales, England, Northern Ireland and Scotland. That is the point I am trying to make. I can see that with an issue

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      which only affected a particular area it might be able to work that way. But, as I doubt that that happens very often, and in major negotiations in agriculture—such as decisions about price fixing, HLCAs and many other matters, and even objective status—they do not merely discuss whether Wales is to get Objective 1 status—they are probably discussing a whole raft of issues relating to Objective 1 status all over Europe. I do not believe it can be nearly as narrow as the noble Lord's intervention seems to indicate. Frankly, any example will be of great interest to me. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 103:
      After Clause 32, insert the following new clause—

      DUTY TO PROMOTE THE INTERESTS OF RURAL WALES
      (" . The Assembly shall seek to foster the economic and social well-being of rural communities, and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development in Wales.").
      The noble Lord said: I shall try to be as brief as possible, but there are no less than 10 amendments grouped with Amendment No. 103. That is not my fault but that of my old friend, the Government Chief Whip. For reasons I do not understand, he no longer listens to me.
      In Clause 33 there is a general duty on the assembly to do anything it considers appropriate to support Welsh culture, including language, arts and crafts, sport, and so on. Much of the area of Wales is rural and is highly prized in terms of its countryside and way of life. It is very desirable for the health of agriculture and of related industries, including tourism, that the economic and social well-being of rural communities should be fostered in future. The purpose of Amendment No. 103 is to place a statutory duty on the assembly to this end and to ensure that the assembly co-operates with local authorities and public bodies which are relevant to the promotion of economic or social development in Wales. Although some people are sceptical about the value of general statutory duties, I believe that there is merit in setting the assembly a clear objective.
      Amendment No. 105A is complementary to the new clause which I propose in order to oblige the assembly to foster the economic and social wellbeing of rural communities. The amendment would place the assembly under a specific duty to consult with farming and other rural organisations when formulating policy and preparing legislation which would affect those interests. Although in Clause 115 there is a general duty on the assembly to consult business as appropriate, the rural character of much of Wales justifies a much more specific guarantee of consultation on action which the assembly is contemplating.
      As I understand it, commissioners will be appointed to draw up the standing orders for the assembly and, having done that, be exterminated. Amendment No. 113 would ensure that at least one of the commissioners had knowledge of agriculture and rural affairs. I fear the Minister will say that the commissioners' job will be
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      merely technical. I am sure that Members of the Committee will agree with me that technical matters are often very important. I hope that, despite his background, or indeed because of it, the Minister will understand the importance of having at least one person as a commissioner who is not a lawyer or an accountant, as I believe is proposed. I should like to know whether, when the commissioners have drawn up the standing orders, they will, in the modern term, be downsized, or, in my terms, be made unemployed.
      The purpose of Amendments Nos. 120, 153, 159 and 161 is to ensure that there will be adequate rural representation on the various committees of the assembly. If I understand correctly, the committees will be constituted on a party basis, in the same way as Select Committees studying Bills in another place. If I am not correct—and, if I am not, I shall, like the Irish, change the question—I can foresee a situation in which there might be no rural representation on a committee because a political party might not have, or want to choose, a person with rural experience. I accept that that is less likely in relation to the regional committees, as opposed to the main Cardiff-based subject committees.
      The purpose of Amendments Nos. 154 and 170 is to ensure that the assembly will have to take account of the economic and social well-being of rural and local communities, and that will be in addition to the advice from regional committees, with which I deal in Amendments Nos. 165 and 166—I believe we are dealing with them tomorrow.
      We then come to Amendments Nos. 260 and 262, which are extremely important. Amendment No. 260 seeks to ensure that the Welsh Development Agency will consider the effects that its proposals will have on rural Wales. Amendment No. 262 seeks to ensure that the Secretary of State can select a person as a member of the Welsh Development Agency on account of his wide experience of and capacity in agriculture and the rural development.
      More importantly, I should like to raise a specific problem of such organisations as the Welsh Food Promotion. That organisation includes other sub-organisations such as the Farm Assurance Scheme and the Guild of Welsh Slaughterhouses. I understand that the Government have reservations about that organisation; indeed strong reservations. I am sorry to hear that, for a lot of voluntary work has gone into it. Slowly, farmers and slaughterhouse men realise that they need to join such schemes. I fear that the Secretary of State may, like me, suffer from impatience.
      My question is an important one and I should like an answer from the Minister. If food promotion and all that it involves is going to be subsumed into the new Welsh Development Agency, will there be a specific agricultural section in it with agriculturalists on it? I believe that deals with all 10 amendments, with which I have dealt in five minutes so there is no need for the noble Lord to go to sleep. I beg to move.
      Lord Roberts of Conwy: I have a great deal of sympathy for the thrust of the amendments so ably

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      moved by my noble friend. They reflect the general concern of people in Wales about the future of rural areas.
      My noble friend seeks to ensure that rural interests are represented at commissioner and assembly committee level, and that the economic and social well-being of rural communities is in the forefront of the assembly committee's deliberations. It is a hope that I share. But the Government may feel reluctant to incorporate the amendments in the Bill and it may be that, when we come to discuss the regional committee structure, we should return to this issue of the future safeguarding and promotion of rural areas.
      Lord Williams of Mostyn: I share the sympathy which the noble Lord, Lord Roberts of Conwy, expressed. However, we do not believe that the right way forward is to deal with all these amendments together.
      The general theme seems to be that there ought to be special treatment for agricultural and rural communities. But the assembly is to be an inclusive forum for the whole of Wales and Clause 120 requires the assembly to make arrangements with a view to ensuring that functions are exercised with due regard to equality of opportunity for all. It would not be right to single out specific communities for special treatment. Indeed, there are many urban areas which suffer significant hardship—not those one normally thinks of, perhaps, but they include the slate-mining districts of Gwynedd, the South Wales valleys and parts of Cardiff not far from where the assembly will have its home.
      We do not agree that the assembly should have a duty to foster the economic and social well-being simply of rural communities—Amendment No. 103. The whole point of the assembly is co-operatively to foster the economic and social well-being of the whole of Wales. In doing that, the priorities ought to be for the assembly and not for the Bill
      In relation to Amendment No. 105A, I sympathise with the noble Lord's concerns. Sound policy making requires consultation. But of course that is already in the Bill—Clause 66 dealing with regulatory appraisals and Clause 115 on consultation with business. Agriculture and rural interests would be covered, where relevant, by both those provisions.
      Amendments Nos. 113, 120, 153, 159 and 161 seek to ensure appropriate rural representation on committees and the standing orders commission. Amendment No. 154 requires subject committees to exercise functions having regard to consequences for local communities in rural areas.
      Amendment No. 153 is misconceived. The nature of the commissioners' work on the standing orders commission is not to require rural or indeed urban or industrial or business representation. It is simply, as the noble Lord thought I might say, to draft detailed rules for the conduct of business—details such as quorums, motions for debates, committee procedures and the like. A rural representative, designated as such, has nothing
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      to put forward by way of offering anything to the commission. It is really a matter for the assembly to decide.
      I have to give the same answer to Amendments Nos. 120, 153, 159 and 161. In accordance with the political balance principle, a consequence of Clause 55, each party will have an allocation of seats on each committee. It is then for each party to nominate those of its members it wishes to fill the allocation of seats on each committee. It is a matter for the parties to decide who is best for a particular committee. It will be a matter in practice for the parties, not for the assembly.
      Amendment No. 154 would require each subject committee to have regard to the economic and social well-being of local communities in rural areas. We would expect any such subject committee to consider the consequences of its proposals for all of the local communities likely to be affected, whether in rural or urban areas, whether they were mining communities suffering from a decline in the coal industry or agricultural areas suffering from the recent decline in agricultural prosperity.
      As to Amendments Nos. 260 and 262, again I understand the noble Lord's concern that the enlarged WDA should take into account the needs of rural Wales. We believe that the enlarged agency will do that. The Development Board for Rural Wales has been taken into the new agency which will be responsible for the development of all parts of Wales, including rural areas. There will therefore be a parity of expertise available throughout Wales.
      It has already been announced that the agency is to create a rural policy unit located in mid-Wales. The unit will co-ordinate the agency's work in respect of rural areas to ensure that those areas benefit wherever possible and as appropriate from the agency's activities. It is implicit in Section 1 of the Welsh Development Agency Act 1975 that the functions of the agency are to be discharged in such a way as to have a positive effect on the economic and social well-being of local communities whether in urban or rural parts of Wales.
      The second part of Amendment No. 260 requires the agency to devote as much of its resources to rural parts as to non-rural parts of Wales. I simply do not understand how that could possibly work. How could one define rural Wales appropriately? How can one possibly get this fly to stop flying around my head? I think there ought to be a special committee for that. How precisely is one to define minimum amounts of expenditure? The aim has merit. I do not dissent from that. However, achieving such aims is best done in the co-operative way I have described rather than through over-prescription. There are enormous numbers of prescriptions here.
      Rural areas, particularly the more remote areas of Wales, have their problems. The Parliamentary Under-Secretary of State at the Welsh Office recently announced the creation of a rural partnership to take forward development of the themes to which the noble Lord, Lord Stanley, is so committed.

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      Amendment No. 262 would require the WDA to have on its board at least one member with rural affairs expertise. No representation has been made by the WDA to have a board member with such particular expertise. We have had 400 responses to advertisements for board members. We hope to get a strong board, bringing expertise from many walks of life, but over-prescription is really not the answer. Everyone knows how important agriculture is as an industry in Wales and as a social component. The WDA Act already puts a duty on the agency to have proper regard to the needs of agriculture in the exercise of its functions.
      I have dealt with the amendments perhaps a little lengthily but I know their importance not only to the noble Lord who has tabled them but to a large section of the Welsh population generally. I hope that I have dealt with the question of Welsh Food Promotion. There will be the rural policy unit. It will be based in mid-Wales and it will have the appropriate expertise to deal with the matters which are within the ambit of Welsh Food Promotion. I do not dismiss or treat lightly the concerns expressed by the noble Lord, but we conscientiously believe that this overprescriptive approach is not the right way to get the sought-after remedies.
      Lord Stanley of Alderley: I thank the Minister for that answer. Perhaps I may first of all say that I did not put all those amendments together and I did not want them put together. They were complicated enough and they were rather too much of a mish-mash. I suppose what I am saying is that urban areas have more votes than rural areas, which is what concerns us. I fully accept what the Minister said about Amendment No. 1 13—that commissioners are merely draftsmen and therefore they can be lawyers, accountants and such like. I just wanted confirmation that that was their job. I am not quite so keen on parties deciding on who will sit on the committees, for the reasons I gave in my original speech.
      I know that Welsh Food Promotion is a touchy subject, not only with the Secretary of State but also with farmers who have served on it. My telephone has been quite hot recently. I shall read carefully what the Minister said. I am not sure that it will entirely satisfy those who ring me up and so I may have to come back to the matter on Report. Meanwhile, I thank the noble Lord for his reply and beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendments Nos. 103A to 103C not moved.]
      Clause 33 [Support of culture etc.]:
      Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 104:
      Page 21, line 23, after ("historical") insert ("or archeological").
      The noble Lord said: It is a little early in the morning to discourse on the difference between "historical" and "archeological" as in my amendment but I would ask the Minister in his response to explain the wording of Clause 33(a) and to confirm that the archeological artefacts within the ownership of the Secretary of State
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      and also others that are in private ownership but are conserved are to become part of the assembly's activity of support.
      Amendment No. 105 was inspired by the rather uncharacteristic remarks at Second Reading of my noble friend Lord Moran. I have notified him of my intention to raise this issue. I declare my interest as chair of the Welsh Language Board. In his Second Reading speech he indicated (at col. 1092 of Hansard) that in its handling of the Welsh language the assembly should be careful not to go too far in imposing Welsh on everyone. I wish to make it absolutely clear that the policy of successive governments has been to extend the Welsh language by consent and by voluntary agreement through schemes with public bodies which obviously have a statutory force. But the implementation of those schemes has been continually by public consent on the basis of guidelines approved by Parliament. Clearly, the assembly will proceed on similar lines. Indeed, the linguistic clauses of the Bill are equivalent to those of the Welsh Language Act 1993.
      My noble friend suggested that Clause 33, to which my amendment relates, would allow the assembly to promote the Welsh language and would create difficulties. He went on to instance his experience as High Commissioner in Canada and to talk of the militant language policy in Quebec and its effect on businesses. He then referred to "language police". He said:
      "I hope that we shall never see the introduction of language police in Wales, or the adoption of policies which arc burdensome to business".
      He concluded that part of his speech by saying:
      "Bilingual debates in the assembly, with simultaneous interpretation, will be practicable but they will be expensive".—[Official Report, 21/4/98; col. 1093.]
      I wish to make it quite clear that I very much regret that those remarks were made in debate in this House. I fail to see where they come from. I have spent much time, along with my officials of the language board, in the county of Powys where my noble friend lives and in discussion recently at a seminar with Powys County Council. I can say that in that border area of Wales, where not much Welsh is spoken in most of the homes, there is strong support for the development of bilingualism among consenting adults both in public and in private.
      Therefore, I hope that my noble friend will accept that the intention of the assembly is to be positive and to promote the Welsh language within the context of promoting the English language equally within Wales. It is about the promotion of two languages and not about one replacing another, whatever may be the unsuccessful policies pursued by some of my transatlantic colleagues in Quebec.
      Finally, I turn to Amendment No. 202A which refers to standing orders and,
      "consideration to be given to the translation of information … into languages other than Welsh and English".
      It concerns the issue of languages in Wales which are spoken by significant numbers of communities but which are not official languages recognised as such

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      either in this Bill or outwith it. I shall return to this matter at a later stage when we can talk at greater length about the concept of citizenship in Wales.
      There is concern among certain members of the community in Wales. Members of our communities are described in a term which I would not personally endorse as "ethnic minority community members" and represent a small minority of the population. According to census figures it is less than 2 per cent., although that is a strange way of collating the figures. There is concern that they are not fully aware of the implications of the assembly for them as citizens and that they are not sufficiently included in the Secretary of State's inclusive formula for the assembly. I have had private discussions with the chair of the CRE in Wales, Commissioner Ray Singh, who is a distinguished lawyer and a member of the national advisory group. I know that he is very much aware of the need to ensure that all members of our communities feel that they are equal citizens of Wales. An indication that the assembly will be able legally to undertake activity in a limited way in other languages as well as Welsh and English would be helpful to indicate linguistic inclusiveness. I beg to move.
      Lord Monson: I hope that the noble Lord, Lord Elis-Thomas, will not misinterpret my intervention as in any way a criticism of his specific amendments. But I would like to take this one opportunity of questioning the Government on the whole purpose of Clause 33, although had I realised at 10 o'clock that this amendment would not come up until after midnight I might well have preferred to remain in a state of ignorance.
      Clause 33 theoretically empowers the assembly to do anything that it considers appropriate to support museums, the Welsh language, arts and crafts, and so on. But it cannot do literally anything which it considers appropriate since it has no legislative powers as far as primary legislation is concerned, although, as the noble Lord,
      Lord Thomas of Gresford, reminded us one hour and 20 minutes ago, it does have certain powers of secondary legislation, but these are tightly circumscribed. So in essence virtually all that it can do as regards museums, historic houses and so forth is to decide on the optimum distribution of the £7 billion collectively at its disposal annually. This being the case, does not Clause 33 merely replicate in part Schedule 2, given that all the subjects deemed worthy of support and encouragement in Clause 33 are already devolved by the Bill? In other words, they are already listed in Schedule 2. I refer specifically to items 2, 3, 13, 18 and, to some extent, item 5. Clause 33 has a nice idealistic ring about it, but does it actually add anything of substance to the Bill?
      12.30 a.m.
      Lord Roberts of Conwy: As a former chairman of the steering committee of Cadw: Welsh Historic Monuments for many years, I rise briefly to say that we always regarded archaeology as an integral part of history. It may not always have been so and that may be why we had a variety of bodies dealing with it: the Ancient Monuments Board, the Royal Commission, the National Museum and
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      Cadw itself. One of the great achievements of Cadw was to co-ordinate all that activity and to bring all those involved together under its own umbrella, where, to the best of my knowledge, it rightly remains.
      With regard to Amendment No. 105, I would be very wary of leaving out a direct reference to the Welsh language, although I appreciate what the noble Lord has in mind. I fear that there are too many people who would take advantage of the opportunity to disregard their statutory responsibility for the language.
      Lord Prys-Davies: I rise to express my concerns about Amendment No. 105. I welcomed paragraph (c) of Clause 33, as it appeared to me to confer a right, if the need arose, for the assembly to take some positive steps to promote the policy of supporting the Welsh language where no specific power would otherwise be available for that. The Minister will no doubt correct me if I am wrong, but I have understood that there is no such power in the transfer functions orders made since 1964. Therefore, I very much welcome that provision.
      I believe that if the amendment were carried, it might bring comfort to some people who believe that the Welsh language is already receiving too much support. If the Government accepted the amendment, that would not allay the anxieties about the Welsh language commitment of the assembly which I have heard expressed. There are those who are concerned that, with its budget under pressure, the language may suffer. To treat in 1998 the requirements of the Welsh language in Wales as if it were on a par with any other language spoken in Wales, as was the case 100 or even 50 years ago, or to treat it as if it were on a par with the French language in Canada is, in my view, right out of the question.
      Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Elis-Thomas, for initiating this interesting debate even though it is rather early in the morning.
      Amendment No. 104 invites us to add buildings of archaeological interest to those which the assembly may support under Clause 33. It seems very likely that a building which is of archaeological interest will also be of historical or architectural interest, so in that sense the amendment may be unnecessary. More relevant is that the assembly will, we intend, inherit the functions of the Secretary of State under the Ancient Monuments and Archaeological Areas Act 1979, which provides explicit powers for providing support for sites of archaeological interest. I believe that that covers the point raised in Amendment No. 104.
      Amendment No. 105 seeks to provide that the assembly can provide support for "languages in Wales" as opposed to the Welsh language. I fully understand the concerns that led the noble Lord to table the amendment. Indeed, they were raised by the noble Lord, Lord Moran. I hope that he will not mind my saying that the English language, which is the relevant one, is unlikely to require such support. The Government are perfectly content with the present wording of the clause and do not share the fears of the noble Lord, Lord Moran, about the language police. In any event, it may be that the answer to the noble Lord's point is that the assembly will inherit specific functions in the field of education and that in the exercise of its

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      function it must have regard to equal opportunities for all under Clause 120. That may encompass the provision of service or information where appropriate in languages other than Welsh and English, including Braille and various minority languages.
      Turning to Amendment No. 202A, I congratulate the noble Lord on the intellectual ingenuity of the proposition that standing orders must require the assembly to consider translation of information about its work into languages other than English or Welsh. We are not persuaded that standing orders could properly contain a provision requiring the assembly to consider whether it wanted to do something.
      Leaving that aside, we appreciate the point that is made. The assembly will need to reach out to all people in Wales and seek to communicate with them in the most effective way, irrespective of race or ethnic origin. That may involve the provision of information in languages other than English and Welsh, but that must be a matter for the assembly to decide in the light of the resources available to it. It may be that, subject to the views of the electorate of Meirionnydd Nant Conwy, the noble Lord will be in a good position to influence the assembly's approach to this matter.
      What does Clause 33 add to any of the powers listed in Schedule 2? As to Schedule 2, that lists areas of policy in which the Secretary of State must consider transferring powers to the assembly, whereas Clause 33 gives the assembly in effect power straight away to spend money on the particular issues raised there.
      I hope that that answers satisfactorily all the points raised. We cannot accept the amendment, and we hope that the noble Lord will withdraw it.
      Lord Elis-Thomas: I am grateful to the Minister. I am glad that we have had this short debate and that my noble friends have taken part in it. Perhaps I am a little over-sensitive on issues of bilingualism and equality, but I have a horror of returning to the bad old days. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      [Amendment No. 105 not moved.]
      Clause 33 agreed to.
      [Amendment No. 105A not moved.]
      Clause 35 [Staff]:
      Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 106:
      Page 22, line 11, at end insert—
      ("( ) Where, under the powers provided in subsection (1), the Assembly makes appointments of staff, it may, if it considers it appropriate, direct the Permanent Secretary to the Assembly (as defined in section 64(2)) that—

      (a) certain staff shall be answerable to the Assembly First Secretary and the Executive Committee of the Assembly and shall be regarded as the staff of the Assembly First Secretary and the Executive Committee; and

      (b) certain staff shall be answerable to the Assembly (or committees of the Assembly) and shall be regarded as the staff of the Assembly and its committees.").

      The noble Lord said: My noble friend Lord Crickhowell dealt with the points raised in the amendments to Clauses 33 and 47 during Second Reading. He acknowledged his indebtedness to certain Members of the other place who had sought to explore the issues. My noble friend crystallised the position with regard to staff in the following way:
      "With a cabinet system most of [the staff] will have primary responsibility to the executive, but the assembly will need its own servants—its clerks and those who are responsible for its administration.".—[Official Report, 21/4/98; col. 1058.]
      Amendment No. 106 provides that the assembly directs the permanent secretary to allocate the staff between the executive and assembly committees and that they be answerable accordingly.
      It is quite clear from this amendment and Amendment No. 112 to Clause 47, which refers to the professional loyalty of civil servants, that my noble friend is anxious to avoid a clash between civil service loyalty to the executive and to the assembly in its executive-checking role. The point is an important one. It is obvious that the executive will have its own interests and that they may have to be closely guarded at times. After all, it will probably meet in secret. It is equally obvious that the ordinary assembly member will have his or her separate interests in the executive's activities and in a wider field. Some division of staff is inevitable. We are familiar with that here in Parliament, where we are well and independently served as Members by our own staff in both Houses. There is no question of where their loyalty lies, even though they all belong to the Home Civil Service. We may not have the division of labour exactly right in the amendments, but I do not think that we are far from it. I commend the amendments to the Committee. I beg to move.
      Lord Elis-Thomas: I shall speak to Amendment No. 193 in this group. It is intended to lay on the commissioners and the assembly's standing orders the specification of the proportion of staff who will be delegated to provide information for members who are not necessarily members of the executive committee. That is a concern that I shall obviously rehearse later this evening on another amendment. It is merely to note the point that I do not believe that the Government so far, or perhaps the National Assembly Advisory Group so far, has grappled with the consequences of creating a cabinet system for the rest of the assembly members. Those are the consequences in terms of the flow of information, and what is called in another place and this place, the "guarantee of the rights of Back Benchers". I use that expression in quotes, because my view of the national assembly is that there should be no Back Benchers. It is a body corporate of 60 people, all of whom have a responsibility for the governance of the country and for their activity there. We must have ways of ensuring that all members, including the subject committee members, who are not members of the executive, will be able to be serviced properly by the staff of the Welsh Office, whose excellence we are observing even at this early hour of the morning.
      Lord Falconer of Thoroton: This group of amendments is concerned with the structure of the

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      Civil Service which will support the assembly. It raises an issue which we are all concerned to see settled satisfactorily—that is, to ensure that all parts of the assembly have the administrative support they need to function effectively.
      The structure of the assembly—its executive committee, its subject committees and so on—is designed carefully to give a balance between an effective executive and a full and meaningful involvement of minority parties in the policy-making and legislative processes of the assembly.
      We all share the aim of ensuring that the assembly, in all its roles, including those which involve vigorous scrutiny of the assembly, is properly supported by its staff. I hope that the Committee will equally share our aim of preserving the valuable political impartiality of the Civil Service so that we avoid the risk of political interference in the running of the assembly's administration.
      The noble Lord, Lord Crickhowell, made clear on Second Reading his intention to examine the position of the civil servants and the support that they will provide to assembly members. I remind the Committee that those issues have been addressed also by the National Assembly Advisory Group set up by my right honourable friend the Secretary of State. I refer in particular to Chapter 5 of the advisory group's consultation document, issued on 17th April, copies of which are in the Library.
      Clauses 35 and 64 are intended to ensure that the permanent secretary (and not elected members) remains responsible for the management of the assembly's officials. As the noble Lords, Lord Roberts of Conwy and Lord Crickhowell, will know from their extensive experience of the Welsh Office, permanent secretaries do not exercise that function in isolation from their Ministers; they do so in consultation with them, and in ways which will deliver the service that Ministers require. The Civil Service serves the political agenda. That will be equally true under the assembly.
      Amendments Nos. 106 and 112 would require the creation of separate groups of staff among the civil servants who will support the work of the assembly. I do not believe that it is right or necessary to prescribe in statute how the staff of the assembly should be organised. In addition, the amendments will be a departure from the principle underpinning the Bill, that all the staff of the assembly, whether they support directly the assembly and its committees or the assembly secretaries, will be members of the Home Civil Service.
      The role of the Civil Service will evolve under the assembly. It will be serving not "the Government of the day" but the assembly, in all its roles. We expect most of the Civil Servants to work in support of the assembly secretaries and the executive committee, in a manner not too dissimilar to the support which the Secretary of State receives from staff at the Welsh Office—to develop and implement the functions and policies of the assembly.
      The role of the office of the presiding officer—to organise the business of the assembly, to enable the subject committees to operate effectively and, vitally, to
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      safeguard the right of individual members—will mean that the staff there will need to be seen as independent of the assembly secretaries and the executive committee.
      However, there is no need to suggest that the consequence of this is a need to create different groups of staff within the civil servants supporting the assembly as a whole. As is currently the case with the Welsh Office, staff are able to undertake a range of responsibilities within different areas of the department. Such moves are encouraged for career development purposes and I would anticipate that this should apply equally with the assembly. Of course, there may well be circumstances where staff will have to work within "Chinese walls" but this is a concept that is well understood.
      In view of this explanation, I urge that the two amendments are withdrawn.
      Turning to Amendment No. 193, I agree with the noble Lord, Lord Elis-Thomas, that it will be important that those members who are not assembly secretaries suffer no disadvantage in being able to access support and information to fully discharge their roles. However, I am sure that the noble Lord is not seeking to suggest that civil servants should be asked to provide personal support to help such members in their constituency and political business.
      Nonetheless, I agree that members not represented on the executive committee need to be well informed, and this was also a point made in the advisory group's consultation paper. The Government's proposals for freedom of information legislation, together with the provision of modern IT facilities, central library and research facilities for assembly members are very much in our thinking in the range of office-based support which members should receive. A more novel proposal put forward by the advisory group is that there should be regular factual briefings by senior officials of the assembly.
      I hope that I have indicated that we hold firmly to the need to retain the Civil Service principles of impartiality and political neutrality, but that at the same time we are exploring with an open mind the best ways of organising the assembly's staff to ensure that it properly supports the whole assembly. It would not be helpful to legislate to enforce a particular division of roles within the assembly. That would freeze the position and prevent the organisation from evolving in the light of experience.
      In view of my reassurances about support and provision of information to members, I ask the noble Lord, Lord Elis-Thomas, to withdraw his amendment.
      Before the noble Lord does so, in this group is a government amendment, Amendment No. 192A. That amendment is intended to bring greater clarity to the drafting in Clause 64. It is purely drafting.
      Lord Elis-Thomas: In view of the reassurances so ably drafted by the officials that will serve the assembly, I shall beg leave to withdraw the amendment.
      Lord Roberts of Conwy: I am not totally convinced that a division of the staff will not be necessary. When

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      I introduced the amendment, I believe that I made an error in describing the servants of this House as being members of the Home Civil Service. I am told that they are in fact employed by the Clerk of the Parliaments. I stand corrected by myself.
      We shall consider carefully what has been said. We may return to the subject at a later stage. I beg leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Clause 35 agreed to.
      12.45 a.m.
      On Question, Whether Clause 36 shall stand part of the Bill?
      The Earl of Balfour: Clause 36 deals with inquiries and states:
      "The Assembly may cause an inquiry to be held into any matter relevant to the exercise of any of its functions".
      Subsection (2) of the clause refers to Section 250 of the Local Government Act 1972 (witnesses and costs at local inquiries). Witnesses can be called and may be required to produce documents. However, the assembly is not a local authority; it is a new body. Surely a new body requires its own legislative powers to force a witness to be required to take an oath: "I will tell the truth, the whole truth and nothing but the truth".
      In Scotland, the Private Legislation Procedure (Scotland) Act 1936 clearly provides for the oath of witnesses, and if they do not take it they can be fined. I wish to draw the Committee's attention to Clause 25 of the Scotland Bill. Its title is "Witnesses and documents: general" and it states:
      "The Presiding Officer or such other person as may be authorised by standing orders may … administer an oath to any person giving evidence in proceedings of the Parliament, and require him to take the oath. Any person who refuses to take an oath when required to do so … is guilty of an offence".
      I found nothing in this Government of Wales Bill which provides for these conditions of oath. It is an important point. I realise that the hour is late and I do not expect an answer from the Minister tonight. However, would he be good enough to look at the matter between now and Report?
      Lord Williams of Mostyn: Yes, certainly.
      Clause 36 agreed to.
      Clause 37 [Polls for ascertaining views of the public]:
      On Question, Whether Clause 37 shall stand part of the Bill?
      Lord Mackay of Ardbrecknish: I have a small point to make. I was reading the clause earlier. Subsection (1) states:
      "The Assembly may hold a poll in an area consisting of Wales or any part (or parts) of Wales for the purpose of ascertaining the views of those polled about whether or how any of the Assembly's functions… should be exercised".
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      That seemed fair enough. Then I noticed that in brackets it states:
      "(other than those under section 34)".
      I went back to Clause 34, which states:
      "The Assembly may consider, and make appropriate representations about, any matter affecting Wales".
      Does the bracket read "other than any matter affecting Wales"? I suspect that I know what is intended, but I wonder whether the draftsman would like to cast his eagle eye over this to ensure that there is not something wrong about the way the provision has been constructed.
      Secondly, if it has been constructed the way I think it has, is that to prevent the assembly ever being able to organise a poll about the independence of Wales?
      Lord Williams of Mostyn: The draftsman is, I am sure, absolutely confident in the rightness of his drafting—but will, of course, review it appropriately. There is no ulterior motive to be found in any clause of this magnificent construction.
      Clause 37 agreed to.
      Clauses 38 to 42 agreed to.
      Clause 43 [Different exercise of functions by Assembly]:
      [Amendment No. 107 not moved.]
      Clause 43 agreed to.
      Clause 44 [Construction of references to Ministers and departments]:
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 108:
      Page 24, line 31, at end insert—
      ("( ) References in any enactment to property vested in or held for the purposes of a government department shall be construed as including references to property vested in or held for the purposes of the Assembly (and in relation to property so vested or held the Assembly shall be deemed to be a government department for the purposes of any enactment).").
      The noble and learned Lord said: This minor amendment to Clause 44 ensures that references in enactments to property vested in or held for the purposes of a government department are to be construed as including references to property vested in or held for the purposes of the assembly. The equivalent provision was made by subsection (2) of Section 74 of the Wales Act 1978.
      The amendments are necessary because the assembly will not be a government department. The various references to land held by government departments would, without these amendments, need specific amendment in the transfer order or in an order under Clause 151. These arrangements will be relevant in relation to statutory provisions referring to Crown land. An example is Section 327(1) of the Highways Act 1980 which, in common with similar provisions, refers to Crown land as including land belonging to a government department. I beg to move.
      On Question, amendment agreed to.
      Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 109:
      Page 24, line 32, leave out ("subsection (1)") and insert ("this section").
      On Question, amendment agreed to.
      Clause 44, as amended, agreed to.
      Clause 45 [Parliamentary procedures for subordinate legislation]:
      Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 110:
      Page 24, line 35, leave out (", confirm or approve").
      The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 111A. These are drafting amendments. Subsection (1) of Clause 45 refers to, "make, confirm or approve", whereas subsections (3) and (4) refer only to "made". Amendment No. 111A also ensures that parliamentary procedures do not apply to subordinate legislation made by the assembly simply because the legislation is subject to the agreement of a Minister of the Crown or government department.
      As we discussed in the context of cross-border matters, assembly subordinate legislation will be subject to parliamentary procedure if the assembly's legislation applies to England, or if it applies to the activities of a cross-border body outside Wales or if it contains legislation made by or with a Minister of the Crown. I invite Members of the Committee to agree these technical amendments.
      On Question, amendment agreed to.
      Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 110A and 110B:
      Page 24, line 42, leave out ("that purpose") and insert ("the purposes of this Act").
      Page 25, line 11, leave out from ("if") to ("in") in line 23 and insert ("it—

      (a) contains subordinate legislation made or to be made by a Minister of the Crown or government department (whether or not jointly with the Assembly),

      (b) contains (or confirms or approves) subordinate legislation relating to an English border area, or

      (c) contains (or confirms or approves) subordinate legislation relating to a cross-border body (and not relating only to the exercise of functions, or the carrying on of activities. by the body").

      On Question, amendments agreed to.
      [Amendment No. 111 had been withdrawn from the Marshalled List.]
      Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 111A:
      Page 25, line 31, at end insert—
      ("( ) In this section "make" includes confirm or approve and related expressions (except "made exercisable") shall be construed accordingly; but an instrument (or draft) does not fall within subsection (4)(a) just because it contains subordinate legislation made (or to be made) by the Assembly with the agreement of a Minister of the Crown or government department.").
      On Question, amendment agreed to.
      Clause 45, as amended, agreed to.
      Clause 46 agreed to.
      Lord Carter: I beg to move that the House do now resume.
      Moved accordingly, and, on Question, Motion agreed to.

      Audit Commission Bill [H.L.]
      Returned from the Commons agreed to.
      Petroleum Bill [H.L.]
      Returned from the Commons agreed to.
      Late Payment of Commercial Debts (Interest) Bill [H.L.]
      Returned from the Commons agreed to with amendments; the Commons amendments ordered to be printed.

      National Lottery Bill [H.L.]
      Returned from the Commons agreed to with amendments and with a privilege amendment; the Commons amendments ordered to be printed.
      House adjourned at three minutes before one o'clock.