CONCORDATS: PARLIAMENTARY APPROVAL

HL Deb 02 June 1998 vol 590 cc268-305

(" . 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 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, 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 moved Amendments Nos. 93A and 93B.

Page 19, leave out lines 29 and 30 and insert ("contains regulations—

1. (a) made by a Minister of the Crown or government department (whether or not jointly with the Assembly),
2. (b) relating to an English border area, or
3. (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—

1. (a) made by a Minister of the Crown (whether or not jointly with the Assembly),
2. (b) relating to an English border area, or
3. (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 moved Amendment No. 94:

Page 19, line 42, at end insert— ("( ) The subordinate legislation scrutiny committee established under section 59(1) shall—

1. (a) consider any draft statutory instrument or regulations made under the powers contained in this section, and
2. (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 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 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 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 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.

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 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.

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 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 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.

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.

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.

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 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 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 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 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.

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 moved Amendment No. 102:

After Clause 32, insert the following new clause—