Government of Wales Bill

HL Deb 02 June 1998 vol 590 cc187-256

3.7 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 21 [Introductory]:

Lord Roberts of Conwy moved Amendment No. 50:

Page 12, line 37, after ("functions") insert (", and no others,").

The noble Lord said: If the national assembly is the heart of the Bill, the functions clauses are its arteries. We come to them now in Part II of the Bill. Before I introduce the amendment, perhaps I may draw the Committee's attention, as I did at the start of our first day in Committee, to the substantial amendments tabled by the Government. The Minister was good enough to forewarn us by letter of some of those amendments, and we thank him for doing so. We are as anxious as the Government to have the Bill in the best state possible. If that means dropping a clause or two, and inserting yet another schedule as the Government propose, so be it. But I am sure that the Minister will understand that the more government amendments we have, the more inclined we are to probe, as helpfully and expeditiously as possible, to see whether the changes are right.

Since we tabled our amendments, the Government have published their draft Transfer of Functions (National Assembly for Wales) Order 1999—a helpful and substantial guide which answers some of our questions and poses rather more. It is the first order and represents a trawl through some 300 Acts of Parliament for Secretary of State functions, including powers and duties to be transferred, after consultation, to the assembly. It is clear that the order may be the first of a number; and that there is no limit, other than government policy, on the numbers or nature of functions that can be transferred from past, present or future legislation.

We suggest a limitation in our first two amendments—namely, Amendments Nos. 50 and 51—which would permit only a one-off transfer under the Bill. I believe that there is a real danger of the assembly being overwhelmed by having all sorts of functions thrust upon it. Surely it will have enough to be getting on with when this order comes into effect.

Members of the Committee will have noticed that the transfer of power is all one way; in other words, there is no provision for the transfer of a function back from the assembly to the Secretary of State. Clause 22(4) envisages the possibility of the variation or revocation of an order, but the noble and learned Lord the Solicitor General made it clear on Second Reading that this subsection was to be used in the event of an error occurring and a correction being necessary.

Our amendments to Clause 22 seek to make the transfer of functions possible in either direction. That seems to us to be a reasonable precaution in the interests of good government, should anything go wrong at the assembly in the exercise of any of those functions. It would put the assembly on its mettle to make good use of the powers that it has and, at the same time, perhaps demolish the assumption that the assembly can only increase its powers whatever happens. Our Amendment No. 67, which is a proposed new clause, provides for the Secretary of State to intervene if the assembly fails to discharge a function satisfactorily. However, I believe that my noble friend Lord Mackay of Ardbrecknish will say a little more later about that suggested new clause.

One of our deepest concerns is that functions are to be transferred by order, subject to affirmative resolution by both Chambers. We are all aware that such orders can be disposed of in the other place by an hour and a half's debate and that they are unamendable there. According to Erskine May, Members of this Chamber can propose an affirmative resolution in one of three ways: first, by seeking to negative the Motion—but this, as I understand it, is not general practice nowadays; secondly, by amendment, the effect of which is to withhold agreement to the Motion for approval; or, thirdly, by amendment or separate Motion expressing criticism of the instrument without necessarily challenging it directly.

The long and the short of it is that orders of this kind, and the procedure associated with them, are far from adequate to deal with the substance of what we have before us—that is to say, functions, including powers and duties, culled from 300 Acts of Parliament and transferred to a body that the authors of those Acts probably never even dreamed of. Once the functions have been transferred to the assembly, this Parliament will have no control over the secondary legislation which may flow from it, except in special circumstances noted in Clause 45.

The assembly will have its own scrutiny and approval procedures and, in that context, it is only fair to note the views expressed by the Select Committee on Delegated Powers and Deregulation in its 18th report, which examined the Bill. Referring to provisions transferring the exercise of existing legislative powers to the assembly, the Select Committee states that this, raises the new question of whether it is appropriate that a power granted by the Westminster Parliament but made subject to parliamentary control should be transferred to the Assembly when the power will cease to be subject to parliamentary control". I believe that that puts the matter in a nutshell. The committee went on to say that it considered this to be an issue for this Chamber and that its function was to consider the effectiveness of the scrutiny process by the assembly. The Select Committee concluded that it was "suitably rigorous".

Schedule 2 to the Bill lists the 18 policy areas in which powers must be transferred before the assembly begins its work. Clause 22(2) explains the requirement which is, for the transfer of such functions in each of the fields specified in Schedule 2 as the Secretary of State considers appropriate". The purpose of Amendments Nos. 56 and 59 is to remove the requirement that all the policy areas listed in Schedule 2 must be covered willy-nilly, as it were, whatever the results of consultation on the order over a period of nine months may reveal. Why is it necessary that some functions must be transferred from each of those fields by the time that the assembly is established? The answer to that question is not clear.

Clause 22(1)(a) is very widely drawn. It provides for the, transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales". I believe that Members of the Committee will agree that that is a very broad power. Indeed, it could apply to any Minister—for example, the Home Secretary, the Secretary of State for Social Services and even the Chancellor of the Exchequer—and the function could be transferred by order. I am advised that the negative resolution procedure might suffice under the Ministers of the Crown Act 1975. Moreover, tax-raising powers might be transferred, although we have the word of the noble and learned Lord the Solicitor General that that is not the Government's intention. However, the principle that functions transferred should be limited in some way is important and primary legislation should be required for major change.

My noble friend Lord Griffiths of Fforestfach expressed his view most persuasively on Second Reading. Having argued for a clean and clear settlement so that both the assembly in Cardiff and we in Westminster know precisely where we stand, he went on to say that, the spirit in which we … approach the issue must be one of trust and encouragement to the assembly, with the result that devolution … must be seen as a process, not an event … On the other hand, if for example this Government or a future government were to consider transferring a function such as giving tax-raising powers to the Welsh assembly, that clearly should be the subject of primary legislation. As I read the Bill, I must say I am not clear as to exactly what will happen and how much discretion lies with the Secretary of State or indeed the Government".—[Official Report, 21/4/98; col. 1088.] We are in exactly the same position of uncertainty. About half the total government expenditure in Wales lies outside the control of the Welsh Secretary of State.

It is possible that the assembly may have its eyes on some of this expenditure and the functions associated with it and that it may argue that it should have responsibility for it. On the other hand, it may not wish to have responsibility for a particular item which the Government are anxious to foist upon it. We are accustomed to hearing local authorities complaining of extra duties being imposed upon them without adequate resources to discharge them. In either case, some form of limitation for function transfers would seem to be advisable. The Government should tell us whether there is any limit to the order-making power for the transfer of functions to the assembly or whether it is open ended and one way, whatever happens, as Clause 22 would lead us to believe.

Finally, perhaps I may comment briefly on Amendments Nos. 65 and 66 which are included in this first group. The simple point behind our amendment is that Parliament, being the order-making body, must give sole approval for a variation or a revocation of its order. It is inconceivable that the assembly would be unaware of an order once it is made or of a defect requiring a change, but that its approval, as well as the approval of Parliament, should be necessary seems superfluous and might lead to conflict. Let us suppose that for some reason the assembly refused to give approval when Parliament had already done so. There would be a cockpit situation. I am sure that the need for dual approval is wrong, and perhaps my noble friends are nearer the mark with their Amendment No. 66 which requires consultation only with the assembly. Surely, it must be a matter of courtesy to inform the assembly. But as to its approval of the revocation or change of an order made by Parliament, that is not necessary. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

As Amendments Nos. 52 and 65 are also being spoken to, I should point out to the Committee that, if Amendment No. 52 is agreed to, I cannot call Amendments Nos. 53 to 59, inclusive, and that, if Amendment No. 65 is agreed to, I cannot call Amendment No. 66.

Lord Stanley of Alderley

My Amendment No. 66 is grouped with this amendment. It is the first of a number tabled in my name and that of my noble friend Lord Courtown. At this stage, their purpose is to try to discover how the Bill will affect farming and the rural economy. I emphasise that I hope that they will be probing, provided of course that the Minister gives me a sensible, and not a Dark Ages, answer, which I am sure he will.

I remind the Minister that agriculture was not devolved in the 1978 Wales Bill. Bearing in mind that for better or worse Welsh agriculture is irreversibly tied into the common agricultural policy and world markets far more so now than in 1978, I wonder why this change of heart by the Labour Government has taken place; or do the Government agree not at all with the noble Lords, Lord Callaghan and Lord Cledwyn, who were very much involved in the 1978 Bill and therefore were instrumental in deciding that agriculture should not then be devolved?

As I agreed on 13th June 1978 with the Labour Government's decision not to devolve agriculture, I hope that the Minister will agree, first, that I am in good company and understand why I am somewhat doubtful about the practicality of devolving agriculture. In short, I believe that on the question of devolving agriculture the Government are guilty until they prove themself innocent.

I have read the recent transfer order, plus the explanation provided by the Government, and I find it extremely difficult to understand. Indeed, I am not sure that it is worth the paper it is written on. I say that for two reasons. First, only 36 per cent. of the Acts to be devolved are mentioned in the guidance notes. As to the rest, presumably no decision has been made, or if it has we have not been told, or the Government do not want to tell us. Therefore, I look forward to hearing the explanation. Secondly, like the first transfer order, it is not definitive. Those Acts marked to be devolved could, as I understand it, in the end not be so devolved; or those not mentioned could be devolved. I hope that your Lordships will realise why I am somewhat confused.

If the Minister therefore believes that we are querying some matters which appear to him to be perfectly obvious or repeating matters which have been raised by my noble friends on the Front Bench, I can assure him that the lateness of the transfer order, after it had been through the other place and after we had had one day in Committee, and with the guidance notes and the groupings, makes it extremely difficult for those who are not full-time politicians. But obviously the Minister believes that ordinary people should not become involved in Parliament and that Parliament should be left in the hands of full-time politicians or even the Prime Minister, which I understand is now the new Labour gospel. Having said that, I hope that the Minister realises that the way in which he replies to my amendments might make it much easier for the various farming organisations to respond constructively to the Government's autumn consultation.

I am sorry to take time, but Clause 22 is crucial, as was explained by my noble friend, because it explains the mechanism for transferring ministerial functions to the assembly by an Order in Council. A draft of the first Order in Council must be laid before Parliament before the first ordinary election next year. The Government have published two drafts of the first transfer order—the one I have mentioned—and are committed to public consultation on the subject this autumn. Under the terms of subsection (4) of the clause relating to the Orders in Council, they are subject to the affirmative procedure, as pointed out by my noble friend. Therefore, drafts must be consciously approved by Parliament. However, as my noble friend mentioned, the subsection provides that in the case of an Order in Council which varies or revokes a previous order, the order cannot be approved by Parliament unless a draft has been laid before and approved by resolution of the assembly. I think that is where we will have some trouble.

That means that once functions have been transferred to the assembly by means of the first Order in Council, the assembly has an absolute right of veto on future changes to those arrangements. If it were subsequently decided at UK Government level that a function which had been devolved ought instead to have been retained for some national reason, it can be transferred back to the UK Government and Parliament only if the assembly agrees to that. I am not a politician, but knowing what politicians are like it seems likely that the assembly would resist any transfer back of a function, however compelling the case for doing so in policy terms.

The rigidity of the clauses drafted works the other way, too. In other words, if the UK Government subsequently decide that they wish to transfer some additional function to the assembly, the assembly could refuse to accept the proposed function. Your Lordships might think that that is strange. I do not. Although I accept that it is a less likely position than the first problem, it could nonetheless lead to a difficulty in which the assembly perhaps wishes to evade responsibility for a politically unpopular or sensitive matter or one which involves limiting financial funds.

The purpose of Amendment No. 66 is to retain flexibility whereby the Secretary of State would consult with the assembly about subsequent Orders in Council which propose to transfer more functions or to claw them back, but would not give the assembly the veto that it has on this process as the clause is drafted, or as I understand the clause is drafted. The Secretary of State is, of course, accountable to Parliament for his actions. The formula used in this amendment appears in Clause 32 where the Secretary of State is obliged to consult the assembly about the Government's legislative programme.

In case I have not made it clear, I feel strongly about the ability to transfer matters to or from the assembly being made easier and quicker. Who knows what disaster may happen in the future that needs immediate action? Chernobyl springs to mind.

3.30 p.m.

Lord Dixon-Smith

I wish to speak to Amendment No. 58 which stands in my name and that of the noble Earl, Lord Northesk. The purpose of the amendment is simply to ensure that the order transferring powers to the national assembly for Wales is published well before any election is due and, one hopes, well before candidates are selected, so that they may know what the functions of the assembly are to be. I am extremely grateful to the noble and learned Lord, Lord Falconer of Thoroton, for a letter which answered some of the points I raised at Second Reading. He states, I can confirm that we intend that the Order should be made well before the elections on 6 May". I hope that when the Minister replies he can assure me that that will take place well in advance of candidates being selected to enable them to have sufficient time to consider their functions before they make the rather robust decision to stand for the assembly. The letter continues, the Order should be made well before … so that candidates are aware of the Assembly's precise range of functions". Like the noble Lord, Lord Stanley, I have examined the second draft order. It comprises a wonderful list but it does not impart information. If one is seeking information from it, it may as well be written in Cyrillic characters, as far as I am concerned. However, I am not a lawyer familiar with these things. Some of the transferred Bills have information attached to them but many of them are simply listed.

I then turned to the guide which one would expect to provide information. As regards local government, the area in which I am particularly interested, I found a list of 38 Bills. The noble Lord, Lord Stanley of Alderley, pointed out that this Bill may be added to or subtracted from. I understand that, as negotiations are being carried out and this matter must still be subject to review. However, of the 38 Bills listed only 13 have schedules. One might think that the schedules would provide information. This reveals the core of what I regard as a fundamental problem. I studied the Caldey Island Act 1990. I assume that the natives of Caldey Island are probably familiar with it, but people standing for the assembly of Wales are less likely to be so. The order states that the function is to be exercised concurrently with the Secretary of State. That is fine. The information imparted in the guide in Section 4(3) states, The power of the Secretary of State by order to make transitional and supplemental provisions with regard to Caldey in consequence of the Act". As a layman I am no further forward, except that as a privileged Member of this Chamber I can go to the Library and obtain a copy of the Caldey Act and find out precisely what is in it. However, we should consider the poor man in the west of Wales who is trying to find out what his functions are. He does not share my privilege. He undoubtedly can go to a library somewhere if he is prepared to travel and he may well get access to the document. There is a real difficulty here. We must bear in mind that Clause 22 is the heart of this Bill. It concerns the transfer of functions. The functions are listed and specified. However, they should be listed and specified in such a way that a layman—I count myself a layman—can understand clearly the functions of a member of the assembly. The purpose of my amendment is to get those functions out into the open in good time so that the public may be aware of them in detail.

Lord Elis-Thomas

I am in a little difficulty as regards the speech of the noble Lord, Lord Dixon-Smith. I have recently been selected as a candidate for the national assembly. I am proud of that and I thank the constituency party of the Party of Wales, Meirionnydd Nant Conwy, for the honour of selecting me to seek election to an elected office. I say that by way of declaring what I hope is a prospective interest. I speak in support of Clause 2 as it stands. However, I must indicate strongly my objection to the tone of those who have spoken so far. With all due respect—as we say in this place—to the Official Opposition, you cannot have it both ways. You cannot on the one hand say that you are in favour of a partnership within the Union but on the other hand threaten reserve powers. Either this is a responsible measure of devolution or it is not. It is obvious to me that the noble Lord, Lord Roberts of Conwy, and others have trawled through the late lamented Act of 1978 which was replete with override powers. There are no such powers in this Bill as it stands.

I agree with the noble Lord, Lord Dixon-Smith, that Clause 22 is the heart of the Bill. But there is nothing new here: all it does is place on the face of a Bill the process of transfer of powers by Her Majesty through Order in Council. The Welsh Office—that great institution of state which we now all love and which the noble Lord, Lord Crickhowell, will no doubt soon extol as being somehow preferable to further transfers to the Welsh assembly—has been created by this very process. There is nothing mysterious about further transfers that may in time emerge. As I made clear in this Chamber at the beginning of our debates on this Bill, I am not in favour of further transfer of legislative power in the Bill. There are arguments for further transfer of executive functions, and those will emerge when we discuss later amendments. The heart of Clause 22—the process of transfer—is well known to this Chamber.

As regards the notion of the assembly having a veto, I say in all generosity to the noble Lord, Lord Stanley of Alderley, that that is not the kind of language with which we should grace our devolution debates. We are not in the business of talking of vetoes, either as regards this Parliament at Westminster or the parliament at Holyrood or the national assembly in Cardiff Bay. We should talk of partnerships. We should not talk of threats of imminent collapse and the withdrawal of powers. We should not talk of Westminster drawing back powers, nor should we talk of Cardiff refusing to take responsibility. I refer again to the tone of the noble Lord, Lord Stanley, who suggested that those of us who seek election to the Welsh assembly might somehow shirk our responsibilities either towards the people in Wales who would elect us or towards this Chamber as a partner assembly within the Union. That is not the way we think of the arrangements that we seek between the peoples and nations of these islands, to coin a phrase so beloved of my noble friend Lord Molyneaux. What we are discussing is how we progress the devolutionary process by agreement, not by threats of imminent collapse or refusal of responsibility.

That brings me to the specific amendment on agriculture. As someone who has lived the whole of his life in rural Wales, I have great difficulty with the notion that agriculture, which is at the very heart of the economy of rural Wales, should not be a matter for which the assembly should have care and responsibility. It is not a matter of coming out of the CAP. No one can come out of the CAP these days, whether in western Europe, central Europe or even eastern Europe. We are searching for ways in which we can work together within that framework and the overall WTO frameworks. But surely there are ways in which an assembly for Wales, having care for the whole rural economy, can improve on the agri-environmental policies that have been pursued by successive governments, and recently in particular by my right honourable friend Ron Davies, the Secretary of State. The noble Lord, Lord Stanley, and his colleagues moving the amendments relating to agriculture and rural matters must surely realise that in the recent farming crisis the one person who has spoken up for Wales and Welsh agriculture is Mr. Ron Davis, regardless of the failure of Dr. Jack Cunningham to speak for UK agriculture. Therefore, to suggest that somehow agriculture should be taken out of this issue and the list of subjects transferred seems to me to fail the agricultural lobby in Wales—who after all need the support of the whole Welsh electorate and the agri-environmental measures which we shall seek to amend and, it is to be hoped, increase in the assembly. Therefore I speak against the amendments and strongly in favour of Clause 22 as it stands.

3.45 p.m.

Lord Crickhowell

I have known the noble Lord, Lord Elis-Thomas, long enough to know that it would be very foolish to question his integrity or assiduity, or the determination with which he will pursue his duties in the assembly. Indeed, it is not my intention to question the integrity of any member of the assembly in any way or to extol the virtues of the Welsh Office. I merely wish to draw attention to what we are doing in this Parliament at this time.

Like my noble friend Lord Dixon-Smith, I am worried and puzzled. My noble friend referred to Caldey Island. As the former Member for Pembroke, I ought to have been immediately able to answer the question he raised on that particular Act. As I expect he knows, almost all the inhabitants of the island are monks. I suspect that the clause to which he refers has something to do with the electoral procedures on Caldey Island. There are problems in conducting elections on an island which cannot always be reached during a campaign or on election day.

The point of my remarks is to draw attention to what this Chamber is being asked to do today. Looking round, I am not sure that every Member present has examined the transfer order or the notes kindly provided by the Government to explain it. My noble friend on the Front Bench thanked the Government for making the notes available, and I believe he described them as helpful. I am sure that was the Government's intention; however, they are the most unhelpful set of notes I have ever read in all my time in Parliament. I do not criticise the civil servants who worked hard to draw them up. It may be my stupidity that means I find it hard to interpret them. The notes tell us that they are the result of a trawl through over 300 Acts of Parliament: one goes back to 1841. A long list is provided of the Acts to which reference will be made in the order.

One then turns to the further notes to see whether one immediately gets a clear view of what it is that we are doing in relation to Clause 22. I had some involvement in the passage of the Water Resources Act 1991. I discover that there are nine pages identifying the powers, and the clauses containing them, that are to be transferred, and those powers that are not.

Most of us have difficulty in passing legislation. We are often confronted with lengthy Bills and do not always find it as easy as do the parliamentary draftsmen to interpret the exact meaning of each clause. However, we usually have the opportunity of turning through a Bill to get a pretty clear idea of its intentions clause by clause. If we are not enlightened by our own reading, the detailed debates in this House will probably throw some further light on the matter. That is the object of a Committee stage. In relation to this Bill, we have to turn to this very long list. Then, in order to discover what it is that we are doing, we have to look at the notes which identify the clauses in the long list of Bills. Presumably, if we then want to know exactly what we are doing, we have to go to the Library and take out the volumes containing the Acts. If we all did that, and brought them into the Chamber, we might bring proceedings to an early halt.

There is a difficulty here. We are being asked to pass a Bill—the noble Lord, Lord Elis-Thomas is absolutely right; Clause 22 is the heart of the Bill—which transfers an enormous range of powers, and yet we are to have the greatest possible difficulty in understanding what we are doing. There is to be an order in due course. I believe that my noble friend said that we shall be able to debate it for an hour and a half—the result of a trawl through more than 300 Bills!

The reality is that we are being asked to pass this legislation largely on trust. We have to assume that the Government have got it right. We have to assume that the civil servants in my former department have gone through the right Acts, extracted the right powers, and included them in the order, and that everything that is being done is being done appropriately.

It is true that under earlier legislation powers were transferred to the Welsh Office—although it has to be said not quite on this scale. The process was spread over a number of years. I had some responsibility for the transfer of powers relating to local government—for example, grant-giving and education powers were transferred step by step in different pieces of legislation. It was possible to consider step by step what was being done in the case of the Welsh Office.

I do not have a solution to the problem that confronts us. Like my noble friends who spoke from the Benches behind me, I am simply confused as to exactly what it is we are doing; and I think it right that this place should understand what it is being asked to do. We should not be misled into believing that all is clarity, and that we as a legislative assembly are clearly in command of the actions that we are taking. I do not believe that to be the case. We are having to take on trust the actions of the Government and those who have done the trawl, and hope that they get it right.

Lord Thomas of Gresford

I am somewhat puzzled by the contribution from the noble Lord, Lord Crickhowell. We on these Benches have never had any difficulty in understanding what was meant by devolution and that there would be the transfer of detailed powers, which have over the years been transferred to the Welsh Office and the Secretary of State for Wales piece by piece and by a considered method. We commend those who have produced the draft transfer order for the assiduity with which they have approached their task and the clarity with which they have expressed their proposals. We have until September to consider the first draft and we shall then have an opportunity to consider the matter again. As I understand it, the draft order will not finally come before this House and another place until next year. We thus have a great deal of time to consider and discuss the detailed proposals which are now being put forward.

I wish to draw the attention of those who have put forward the amendments to the fact that the proposals for the transfer of functions are clearly subject to the approval of this House and the other place. Under Clause 22(2), the draft of the first Order in Council has to be placed before each House of Parliament. The subsection does not spell out what functions are to be handed over but says that the order will, transfer … such functions … as the Secretary of State considers appropriate". As for the future, Her Majesty may—it is a discretionary power—by order in council, provide for the transfer to the Assembly of any function so far as exercisable by a Minister of the Crown in relation to Wales". Under subsection (4)(a), any future order of that nature will be placed before both Houses of Parliament and approved by a resolution of each House.

I see nothing wrong with the parliamentary scrutiny and the timetable for consideration of these detailed proposals. I emphasise again that, although some 350-odd statutes from the past have been looked at in the draft transfer order, they had already been looked at when the functions were handed over to the Welsh Office by way of administrative devolution.

It seems to me that the purpose of some of the amendments is to snatch back functions from the new Welsh assembly without the consent of that assembly. The noble Lord, Lord Stanley, said that subsection (4)(b) gives the assembly the right of veto over the actions of Westminster in snatching back powers from Wales. I should like to put it a different way.

Lord Simon of Glaisdale

Before the noble Lord continues, I do not believe that the noble Lord, Lord Stanley, said quite that. What he said was important. He said that any attempt to take back powers would be disputed in the assembly. That is a fact we must bear in mind.

Lord Thomas of Gresford

I fully understand that, and I am grateful to the noble and learned Lord, Lord Simon, for his intervention. I am saying that, rather than the assembly exercising a right of veto, under Clause 22(4)(b) it has a right to be consulted if Westminster seeks to take back powers and functions already granted to that assembly. Is it proposed that the Welsh assembly should not be able to debate the removal from it of functions granted to it by Parliament? Is it to be assumed that the assembly will have no say in the matter; that it will not have the opportunity to consent to it; and that by some arbitrary act its functions can be diminished? Surely that could never be acceptable to the elected representatives of the people of Wales.

Lord Stanley of Alderley

Will the noble Lord give way? He has raised a very important point, on which I should like clarification. As I read the clause, if further powers are granted to the Welsh assembly, or are to be taken away from it, that assembly has a right to be consulted, but it also has a right of veto over proposals to take powers away. It would help me enormously if the Minister could clarify that point when he responds.

Lord Thomas of Gresford

I am grateful to the noble Lord. As I understand the difference between his amendment and that put forward by the Conservative Front Bench, the latter provides that there would be no right for the Welsh assembly to be consulted, whereas the noble Lord, Lord Stanley, being a good Welshman, has at least suggested that someone should ask the Welsh assembly if it has a view to express. I see that the noble Earl, Lord Courtown, agrees with that. There is a vital distinction between the two amendments.

When we come to Amendment No. 67 proposed by the Conservative Front Bench, matters are even worse. If the proposed new clause were to be added to the Bill after Clause 22, it would be entirely within the discretion of the Secretary of State to snatch back the powers and functions of the assembly at his own whim. The proposed new clause states: If the Secretary of State is of opinion that the Assembly has failed to discharge any of the functions transferred to the Assembly in a manner that the Secretary of State considers adequate, he shall certify the facts and matters he relies upon and serve notice thereof upon the Assembly". Then, if he—no one else—is not satisfied with the response and remains satisfied that the facts and matters are detrimental to good public administration in Wales, the Secretary of State shall by statutory instrument transfer the relevant function or functions of the Assembly to himself to such extent and for such period as may be therein specified". That amendment would give complete control to the Secretary of State, at his own whim, at his own political motivation—perhaps "whim" is the wrong word—because he takes a different political view from that of the Welsh assembly, to snatch back those powers and functions without consultation.

If a Welsh assembly is to have any meaning, if devolution, which is being granted by a bold and courageous step by the Government, is to take place, let the assembly be strong and retain power and control over its own functions and powers. These amendments should go no further.

Lord Rees

Before the noble Lord sits down, does he not recognise that the Secretary of State is subject to review by both this House and the other place? The idea that he personally, on a whim, can snatch back powers seems to me to be very wide of the mark. Has the noble Lord given any thought to that possibility? If so, perhaps he will share his views on that matter with the Committee.

Lord Thomas of Gresford

I am grateful to the noble Lord, Lord Rees, for what he said. I did rather withdraw from the word "whim", because perhaps it does not assist my argument. It is better to consider a more realistic situation in which, with a government at Westminster of a different political colour from that of the Welsh assembly, the Secretary of State, with the support of the Cabinet and of the majority in the Houses of Parliament, could operate in such a way as to nullify the powers of the assembly. That would be against the spirit of the Bill.

4 p.m.

Lord Simon of Glaisdale

On the last occasion your Lordships considered the Bill, I ventured to suggest that it had no traditional electoral legitimacy. After the Armed Forces and expatriates had been disfranchised, there was a very narrow majority in favour, in spite of all the resources of the Government being put into the campaign. However, although the Bill has no electoral legitimacy, it has a different, unusual—I think, unique—and very interesting legitimacy. The vote having taken place, all parties, including those who took a negative view and those who thought the proposals did not go far enough, seem to agree that in the circumstances the Bill should be made to work.

That demands an unusual attitude both from the Government and from Members of the Committee. From the Government it demands a much more reflective and flexible response than anything we have had up to now. From Parliament it demands the good will to make this scheme work, bearing in mind—if I may repeat—the very wise pronouncement of Clement Attlee. It was a statement with a profound constitutional sense that democracy is not just government by the majority but government by a majority with deference to the interests of the minority.

The second important matter in the Committee's approach is to eliminate so far as possible areas of conflict. The first thing is to make the proposals for devolution as clear-cut as possible and as indisputable as possible in a forensic sense. The second is to eliminate areas of conflict such as an attempt to take back powers which have once been transferred. Of course, things may go wrong. But if there is an attempt to draw back powers which have once been transferred, things are bound to go wrong. The noble Lord, Lord Stanley of Alderley, was quite right that, if there is any attempt to withdraw powers once granted to the Welsh assembly, that is bound to be hotly resisted by the assembly. It would be irresponsible if we allowed such a situation to be permissible.

It seems to me therefore that, although the noble Lord, Lord Roberts, moved the amendment in his habitual clear, cogent and considerate way, on the whole it runs counter to the attitude that we ought now, in these unusual circumstances, to adopt towards the Bill. I have not yet seen the draft order and perhaps anything I have to say about Clause 22 is better left to the Motion that the clause should stand part of the Bill. In the meantime, I venture to beg the Committee to approach this matter not in any sharply polemical way but in the flexible way of good will towards the assembly and the people who will be governed by it.

4 p.m.

Lord Mackay of Ardbrecknish

Perhaps at this stage I may say a few words about Amendment No. 67, as my noble friend Lord Roberts of Conwy suggested I would. At the risk of annoying the noble Lord, Lord Thomas of Gresford, this is not a new clause put forward in any spirit of wanting to grab back some of the powers that have been given to the Welsh assembly; it is a recognition that there will be a continuing relationship between the Government of the United Kingdom and the Welsh assembly. Issues will arise when the Government of the United Kingdom, for wider reasons, will have some responsibility for the decisions made by the assembly. For example, those wider reasons may be to do with our membership of the European Union; they may be to do with matters relating to GATT or other worldwide obligations into which the United Kingdom has entered but into which the Welsh assembly will not have entered because it will not have responsibility for those issues.

In those circumstances, or indeed some others—perhaps some of the difficult cross-border issues that take up so many pages on the Marshalled List today—

Lord Elis-Thomas

Perhaps the noble Lord will allow me to intervene to comment on a remark he made earlier. Surely the assembly will have a shared responsibility in any United Kingdom matters which are partly devolved, in that the assembly is covered by the override power—the only one in the Bill, as far as I understand it—ensuring that the assembly does nothing to contravene UK international obligations. The assembly therefore will be involved in GATT and the WTO, but it will not be contravening what the UK may be doing in those areas.

Lord Mackay of Ardbrecknish

I am grateful to the noble Lord. Indeed, the assembly will be covered by those things, but it will not be involved. in the negotiations or the conclusions. However, I agree with the noble Lord that it will be obliged to follow them.

The problems will arise if the assembly does something or does not do something. That will clearly be difficult for the United Kingdom Government. What powers do the Government or the Secretary of State have? Amendment No. 67 suggests, in a modest manner, a way round the problem. The first part gives the Secretary of State powers to notify the assembly if he considers that it is failing in the discharge of any of the functions delegated to it. One hopes that at that point the assembly will consider the position and take steps to satisfy the Secretary of State that it is doing its job properly by discharging the functions or that it is taking proper cognisance of whatever external issues are being brought to bear on the matter in front of it.

The second part of the amendment deals with a situation where, for whatever reason, the assembly decides that it is not going to take any cognisance of the centre. I know that the noble Lords, Lord Thomas of Gresford and Lord Elis-Thomas, think that that is my fevered imagination. But government's experience—of both parties—with local government suggests that occasionally subsidiary governments decide to dig in their heels and see what happens. I appreciate that the Welsh assembly may be different from any other body that we have in this country in local government, but I am not entirely convinced. I have watched local government occasionally decide to dig in its heels and challenge central government: "If you want it that way, come and do whatever you need to do. We are not going to play ball".

The second part of the amendment therefore gives the Secretary of State some powers to deal with the situation if he thinks it necessary. If he goes way outside the spirit of the words in the new clause, I have little doubt that the noble Lords, Lord Thomas of Gresford and Lord Williams of Mostyn, and their colleagues in the legal profession will get stuck in, and I do not believe that the Secretary of State would last very long in court if he were clearly going beyond the words on the Marshalled List.

Let us presume that all is well from the legal point of view. In order to attempt to ensure that the Secretary of State does not have dictatorial powers, we have ensured that he can exercise this kind of override position only subject to the democratic control of this Chamber or another place. I accept that it is possible that there may be a huge political divide between the Houses of Parliament in London and the assembly in Cardiff; that will inevitably happen at some stage. I should like to think that neither will take the view that they want to break the whole thing apart by taking a purely political view of any issue.

I should like to think also that the words in the new clause are constructed in such a way that, if a government at Westminster were taking a view which was entirely political and clearly had not much relevance to the wording in the new clause, again the legal profession would be called in to play and the Government would suffer a bloody nose in the courts for exceeding those powers—a subject of which I have some experience in my previous existence, so I know that judges can do that kind of thing.

I hope that I have explained at least a little to the Committee's satisfaction. I am not trying to give the Secretary of State huge or dictatorial powers but measured powers whereby he can point out to the assembly that it is not doing things properly or is making difficulties for itself. That could lead to discussion and the possibility of a satisfactory outcome. Failing that, the Secretary of State could proceed not by diktat but by statutory instrument which would be subject to the democratic control of the House. This is sensible machinery to put into the legislation. I would hope that it never had to be used but it would be in place against the day that it might.

Lord Rees

Every Member of the Committee taking part in the debate approaches the Bill with the utmost good will, benevolence and optimism with regard to the assembly, its functions and future. That was the tenor on Second Reading. Whatever reservations we may have had at an earlier stage we are now faced with the practical prospect of translating the thinking behind the Bill into sensible, statesmanlike measures. Against that background we are obliged and bound to consider in some detail what powers are being transferred to the assembly, how those powers can be modified, increased or diminished in the future, and what is the ultimate control and where does it lie.

I shall not take up the Committee's time on the details of the powers at this stage. There will be many amendments allowing for that. Nor will I consider how those powers can be added to or subtracted from. I want to reflect on the responsibilities of the Westminster Parliament in relation to the assembly. We cannot just wash our hands of the assembly once the Bill is passed into law, if it is passed into law without substantial amendment. We retain constitutionally the ultimate responsibility for the running of the United Kingdom. I shall not deal with delicate matters in relation to Scotland; we shall come to those in due course.

Implicit in the remarks of the noble Lords, Lord Thomas of Gresford and Lord Elis-Thomas, was that any thought of Westminster needing to control or reflect on the performance or powers of the assembly would be regarded as an affront to the people of Wales or those who might be elected to the assembly. That is absolute nonsense. I come from a part of Wales which reflected its reservations in the referendum in spite of the rather unattractive and shabby way the referendum was put. We indicated our reservations. We were perfectly entitled to do so. We are entitled to reflect those reservations today and in the debate we will be having in weeks to come. We are entitled to consider them.

Supposing things do go wrong? Supposing there is friction between the assembly and Westminster? How are these matters to be resolved? Although we had not seen the Bill at the referendum stage, the way its conception was put to the people of Wales at the referendum was that the long stop after all is Westminster. If it is said that any power handed to the assembly is gone for good, no matter how the assembly performs, then one has to face the fact that a deliberative chamber can reach some very odd conclusions which may not be very practical. Are we to say that that is a matter for the assembly, that we have given it powers and that we have no further responsibility? I do not take that view. We have, and will have, a continuing responsibility.

How that power is exercised and how the assembly exercises its powers will be a matter for deep reflection both here and in Cardiff. We have to face the possibilities in a realistic and practical way. We must not draw conclusions that we do not have confidence in the people of Wales and that we are going to keep them dancing at the end of a string. History, alas, is all too full of examples where people set out with the best intentions and those intentions are not fulfilled.

I hope that we can have a measured and careful debate on these questions, particularly on the relationship of the assembly with Parliament in Westminster. On that basis Amendment No. 67, which my noble friend commended, deserves our careful and sympathetic consideration.

4.15 p.m.

Lord Hooson

I want to make the briefest of interventions. Obviously devolution is a process and much depends on the civilised relationship between Parliament and the assembly. What I find objectionable in most of the amendments to be put forward is that they are sowing the seeds of dissension into the Bill. It is the attitude that says we want an overall control and right to withdraw powers and so on. That is quite unnecessary. If there were to be a real clash of principle between the assembly and Parliament—after all, this is a major devolution—this Parliament is sovereign. If it came to a question of a clash between the assembly and Parliament, then all the power is with Parliament. Why therefore is it necessary to sow the seeds of dissension into the Bill?

Lord Stanley of Alderley

I agree entirely with the principle of what the noble Lord is saying. However, the noble Lord says that if there is dissension sovereignty rests at Westminster. I do not see where that is written into the Bill. I think the noble Lord, Lord Elis-Thomas, misinterpreted the tone of my amendment. I am saying that if things go wrong I want exactly the same as the noble Lord.

Lord Hooson

The noble Lord, Lord Stanley, protested many times during his speech that he was not a politician. I thought he was giving a first-class impression of one. He knows I have very warm regard for him. In a relationship such as we are developing between the Welsh assembly and Parliament, you cannot have everything set in stone. You must not anticipate every little problem and give jagged edges to every solution. It will depend on a civilised relationship.

The citizens of Wales realise there are many advantages of being part of the Union; people in England and Scotland realise there are great advantages in giving the people of Wales a good deal of control over their own affairs. The relationship will be a developing, growing one.

Much will depend on the concordats which will be set out. They will be a means of setting in motion what will become constitutional conventions. No doubt they will be amended along the way, but they will become constitutional conventions in the relationship between Parliament and the assembly. That is the way to proceed, not on a basis of suspicion and spite.

Lord Prys-Davies

I agree that the relationship will surely develop over time. It must be clear from the outset that the Welsh assembly is not an agent or a trustee of the Secretary of State. It is not accountable to the Secretary of State; it is accountable to the Welsh people. Amendment No. 67 misses the point. Even if the Secretary of State takes the view that the assembly is not performing a function in a manner which is acceptable to him, that is a political decision. If that be the view of the assembly members, so be it. Of course, if the assembly acted outwith its powers, that is a matter to be referred to the judicial committee. From the outset we must be clear that the assembly is not an agent or a trustee of the Secretary of State.

Lord Simon of Glaisdale

As I did not speak to this amendment, not having heard the noble Lord, Lord Mackay, say what had to be said, perhaps I may add this. The noble Lord, Lord Rees, is quite right. There is an overriding responsibility on the British Government in the United Kingdom and on Parliament as to the affairs in any part of the United Kingdom. The amendment envisages a major breakdown, a deplorable breakdown, in administration by the assembly. That is a major matter and it can be corrected. The way to correct it is obviously by primary legislation. That is always within the power of Parliament.

However, that is not what the amendment proposes. It proposes that this should be done by secondary legislation on the say so of the Secretary of State, subject of course, as the noble Lord, Lord Mackay, emphasised, to parliamentary approval. But it must be wrong that such a momentous constitutional step should be carried out by secondary legislation.

My own view is that the more the Secretary of State keeps his nose out of Welsh affairs, the better it will be both for him and for Wales. I have the gravest doubt whether the proposal that he may intervene in the legislative affairs of the assembly is justifiable. But certainly to give him this power, to write it into an Act of Parliament, is both to insult the forthcoming assembly and to create the worst kind of atmosphere, when, as I think all your Lordships hold, the assembly should be set up in the best kind of atmosphere.

The Earl of Balfour

I should like to comment on Amendment No. 53. Clause 22 commences with the words: Her Majesty may by Order in Council … provide for the transfer to"— but it does not allow for the transfer from— the Assembly of any function so far as exercisable by a Minister of the Crown". Circumstances do change from time to time. I feel that the Government need to protect themselves a little where there are changes so that a Minister can then change his mind over anything in particular.

Lord Williams of Mostyn

A good deal of what underpins the discussion on these linked amendments depends on what kind of creature it is wished should inhabit the new assembly when the committee of the noble Lord, Lord Callaghan, has decided on its architectural design. I recognise entirely, and recognise with gratitude, the fact that in all corners of the Chamber—virtually without exception—the overwhelming majority has come to the generous conclusion that because there was a majority in the referendum, though modest, all efforts should be put to making the Bill work. But that means that the philosophy underlying the Bill and how we deal with matters—whether we start with an emotional approach which is suspicious or whether we look on it as a confident opportunity for a brand new assembly and a new constitutional device—is very important.

The noble and learned Lord, Lord Simon of Glaisdale, made two points. I agreed with one of them and disagreed with the other. I start with the area of disagreement. It simply is not right to say that the Government have been inflexible. I said at Second Reading on a number of occasions—it was repeated by the Solicitor-General on the same occasion—that any suggestion which improved the Bill would be carefully considered. We have demonstrated that. It simply is not factually correct to say that we have been rigid. Indeed, the whole tone and tenor of what was said by the noble Lord, Lord Roberts of Conwy, demonstrates that. He was a keen and influential participant in the discussions about whether we should have a cabinet system or a committee system. Having reflected on the arguments that he and his colleagues put forward, we changed our mind. That is not a sign of inflexibility.

Suggestions were put forward, including some from the party opposite, that we should carefully consider having an ombudsman for the assembly. We considered that and were flexible on it. So it simply is not right to say that we have been rigid.

Lord Simon of Glaisdale

The Minister will remember that he used the same words on the amendment to allow the Armed Forces to have a say in a matter that affected them. He said, "It would be considered carefully" and "It would be considered sympathetically". The outcome was that they were disenfranchised.

4.30 p.m.

Lord Williams of Mostyn

They were not disenfranchised. They were held to the registered franchise which they had formerly had. That is quite different. In fact, the noble Lord, Lord Campbell of Alloway, among others, put forward the proposition which was supported by a number of your Lordships. I went away and came back with, I hope, a reasoned response. We were not able to accept that amendment. However, we accepted the thrust of the argument, which was, "Do you have a cabinet system or do you have a committee system?" That is extremely important and I would say, I hope without stirring up any fury, a good deal more significant than the extent of the franchise that we had and whether or not an Italian waiter might or might not be able to vote when the daughter of the noble Lord, Lord Mackay of Ardbrecknish, could not.

Where I agree with the noble and learned Lord, Lord Simon of Glaisdale—I hope therefore that he will not immediately snatch away his agreement from me—is that if one is to have a change to the constitutional arrangements set out in the Bill then, as the noble Lord, Lord Hooson, said, that would be a matter ultimately for the residual sovereignty of the Westminster Parliament. But if powers are to be taken away—I do not use the words "snatched back" for fear of being accused of being intemperate in my language—if powers are to be recovered, then, constitutionally, it should be done in the way described by the noble and learned Lord, Lord Simon of Glaisdale, and by the noble Lord, Lord Hooson.

It is right that Clause 22 is the heart of the Bill. There is no difference between us on that. I do not detect any hostility to the concept of the assembly in anything that has been said in various degrees of reproach by noble Lords this afternoon. I welcome what was said by the noble Lord, Lord Rees, but it is our duty to get the best possible outcome, the basic frame, as it were, now having been the subject of the positive verdict in the referendum. Therefore, all these amendments—they are by no means internally consistent, if I might gently point that out—deal with the mechanism by which the assembly is to gain the majority of its functions. It is the heart of the constitutional settlement.

A number of noble Lords have made interesting comments. Perhaps I may apologise in advance for being rather longer in my response than I would normally have been. Clause 21 states that the assembly is to have the functions transferred to it or made exercisable by it by virtue of this Act. That is a clear reference to the transfer of ministerial functions under Clause 22. Clause 21 also says perfectly plainly that the assembly is to have the functions, conferred or imposed on the Assembly by or under this Act or any other Act". The noble Lord, Lord Hooson, is quite right in that this is a process and not an event: were it an event it would be foolish to embark on it.

Initially, the vast majority of the functions are dealt with by order under Clause 22. But from this autumn onwards other Bills brought forward by your Lordships may confer appropriate functions directly on the assembly. This Bill gives a number of functions directly to the assembly—that is to say, the powers to reform public bodies in Wales in Clauses 28 and 29. I am bound to say that I have not met any opposition to that power. There are powers to support culture in Clause 33 and to hold polls under Clause 37.

Amendments Nos. 50 and 51 are inappropriate because they do not recognise that this Bill itself confers functions on the assembly and we cannot accept them. We cannot accept Amendment No. 52 or its sisters, Amendments Nos. 53, 54, 56 and 65. Amendment No. 52 means that the transfer of functions will lack precision. If the intent of Amendment No. 52 is to make sure that your Lordships' House and the wider public know what the transfer functions are to be, it will fail. The transfer order, which we published on 14th May in second draft, will spell out precisely the functions under which Acts are transferred to the assembly.

We believe that we can give clarity. I agree that it is a somewhat laborious clarity, but that is the nature of legislation. I remind the Committee, as has been said earlier, that quite a lot of functions have already been transferred to the Welsh Office over the years. Apart from the occasional political anorak in Wales, I doubt whether anyone has immediately to hand, mind and heart precisely what all the Welsh Office functions are. That is the purpose of the draft transfer order.

We believe that, with the best will in the world—I impugn no one's motives at all on these occasions—what will happen if any of these amendments are accepted by the Committee, is to bring about confusion and dispute. The point was made about Caldey Island and what it meant. It is equally true, as always, that the noble Lord, Lord Crickhowell, had the answer readily to hand. I believe that he must be unique in your Lordships' House. I make my own public confession that I did not have the answer immediately to hand. However, I had others to assist me, but the noble Lord did not. As is well known to every Welsh schoolboy, the Caldey Island Act gives the Welsh Secretary of State powers in respect of elections, coroners' courts—rarely held, I imagine, in that peaceful island—and the district health authorities on that island, which clearly ought to pass to the assembly.

The noble Lord, Lord Crickhowell, is absolutely right. He said that we have to take the Bill on trust. To an extent that is true, but I hope that we are playing our reciprocal part in that process. We are publishing drafts as we go along as soon as we have them. I am grateful for what the noble Lord, Lord Roberts, has said. I have been as open as I possibly can with him and all Members of the Committee and at as early a stage as possible. I recognise that it is difficult to labour through these drafts which are extremely lengthy. We shall be consulting publicly on a complete draft before making the order and that order will require the resolution of both Houses. So there will be an examination of it by the Joint Scrutiny Committee in the usual way.

Amendment No. 52 purports to transfer all functions to the Secretary of State in the fields specified in Schedule 2. But that is not what we propose. We said in the White Paper that virtually all the functions would be transferred to the assembly, but some would not. I give as an illustration the Secretary of State's function in advising Her Majesty on certain appointments that she makes. That is not intended to be transferred and that is deliberate. That is why the draft transfer order shows that we do not intend to transfer to the assembly functions to do, for instance, with the appointment of the chief inspector of schools in Wales under the School Inspections Act 1996 or the local government commissioner for Wales under the Local Government Act 1974. We have been selective and, I hope, prudently so.

We are also considering transferring powers to the assembly of some functions which are not exercised by the Secretary of State for Wales. Some examples include joint powers where the legislation requires that he acts jointly with his Cabinet colleagues. We aim to remove the requirement for joint action wherever practicable so that the assembly will be free to exercise such powers on its own in and for Wales. Where we believe that to be the right course the transfer order will need to transfer to the assembly not only the Secretary of State's functions, but also some of those of his colleagues.

A question was raised about international obligations. I believe that the noble Lord, Lord Elis-Thomas, is right because in Clauses 108 to 110 we see there the mechanism for ensuring that whatever the assembly does in the international and EU context has to be compliant.

Perhaps I may spend a moment or two on the amendment which has appealed to the Committee perhaps more than some and that is the amendment in the name of the noble Lord, Lord Roberts of Conwy, which was moved by the noble Lord, Lord Mackay of Ardbrecknish; namely, Amendment No. 67. I had thought that the long tradition of Stalinist state centrist control had gone from the Conservative Party, but I was wrong. It really is an extraordinary proposition that the noble Lord has put forward. It may well be tongue in cheek, otherwise known as probing, but what he actually said was that if one has subordinate assemblies which do something which the Secretary of State is not satisfied with, the Secretary of State can have that draconian override.

It is quite interesting to look at the phraseology. It is not, "If the assembly behaves unlawfully"—as the noble and learned Lord, Lord Simon of Glaisdale, said, the judicial mechanism for putting that right on a vires basis is there—but what is said here, as a result of due deliberation, is this. If the assembly, in the Secretary of State's opinion, failed to discharge any of the functions transferred to the Assembly in a manner that the Secretary of State considers adequate. he must serve notice on the assembly. Then, if he is not satisfied with the response, he may himself transfer those powers, to such extent and for such period as may be therein specified". That is the apotheosis of the nanny state—asking for trouble and likely to get it.

4.30 p.m.

Lord Mackay of Ardbrecknish

I must be helpful to the noble Lord and stop him walking into too much trouble of his own making. He drew our attention to Clauses 108 to 110 about the inter-relationship between the assembly and Europe. Perhaps I may read out and remind the noble Lord of Clause 110(3) which states, If the Secretary of State considers that any subordinate legislation made, or which could be revoked, by the Assembly is incompatible with any international obligations, he may by order revoke the legislation". I do not believe that the noble Lord should go too far in accusing me of the nanny state.

Lord Williams of Mostyn

The noble Lord makes my point abundantly and in spades. We are dealing with two categories of activity. Perhaps I may just assist the noble Lord so that he does not stumble further into a trap of his own making and, of course, in a spirit of concordance. On his example—I am sure he will happily withdraw it in a moment or two when I have helpfully explained it to him—we are talking about legal obligations in the international field. What we are speaking about when we scrutinise with a beady eye his Amendment No. 67, is that if the Secretary of State considers that in the exercise of any function the performance of the assembly is inadequate, then he may take it back to himself. I believe that Imperial Caesar would have thought that that was a bit rich!

Lord Rees

I had no hand in the drawing of this amendment so I look at it with a relatively detached eye. Does the Minister concede that this will be the subject of debate and ratification by Parliament at Westminster? Since the Minister is so concerned about the Caesarian state, is he seriously suggesting, as a member of the current Administration, that if it was the opinion of the Secretary of State and, after debate, of the Parliament at Westminster, that, matters which give rise to the same are likely to persist to the material detriment of good public administration in Wales without intervention", the government of the day could wash their hands of what was happening across Offa's Dyke?

Lord Williams of Mostyn

Both the noble Lord, Lord Rees, and I used to practise at the Bar so I recognise what he has done. He has immediately disavowed any paternity or even responsibility for the amendment under discussion. If the noble Lord wants to table a reasoned amendment of his own, we shall, of course, give it every proper, due and mature consideration—and probably come to the conclusion that we were right all along anyway! However, we would consider an amendment.

What is being proposed is something wholly different. It is not as wholly different as the example given by the noble Lord, Lord Elis-Thomas, but it is a lurker in the middle. The phrase, "Is the noble Lord suggesting?" has been put to me rhetorically. I recognise that from forensic fields with which many of us are familiar because it immediately suggests that if I disagree with the proposition, there must be something seriously wrong with me.

I am referring to the possibility of a total breakdown leading to catastrophic consequences of the sort mentioned by the noble Lord, Lord Hooson. I respectfully repeat what I believe to be constitutionally correct. Indeed, it has been confirmed by the noble and learned Lord, Lord Simon of Glaisdale. Ultimately, sovereignty remains at Westminster. The short question is whether we approach this on the basis of being hopeful and confident, on the reasoned basis of recent history, that the assembly is capable of working—in other words, is the assembly fitted for power by the powers that we give it—or whether we should build in such mechanisms as will allow intervention. I respectfully suggest that that is what is absurdly and wrongly offered in Amendment No. 67. If a catastrophe occurred, we should have to consider this, bearing in mind our ultimate constitutional sovereignty here in Parliament. I continue—

Lord Roberts of Conwy

Perhaps I may point out that in the new schedule on cross-border issues which the Minister is proposing, there is a power for the Secretary of State to intervene in certain circumstances. Would the Minister care to comment at this stage on that power of intervention which is to be given to the Secretary of State?

Lord Williams of Mostyn

Most certainly. That is another helpful intervention, indicating that we are dealing with wholly different circumstances. By definition, cross-border matters do not affect the people who voted for the assembly and who will therefore be governed by it. Cross-border matters relate to colleague nations—if I may use that unattractive phrase—in a different context. I am obliged to the noble Lord, but with great respect perhaps I may advise him that he has again abundantly made the point of principle for which I contended earlier.

We have already considered Schedule 2. We have decided that one of the appointments to the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council should be made with the assembly's agreement. It is to receive copies of those other bodies' reports. That is a useful, practical and utilitarian step.

We are not willing to rule out now, for ever, the possibility of future transfers of ministerial functions to the assembly. We have no plans to make further orders, but we contemplate the possibility that further powers might at some stage be appropriately transferred. The Opposition's amendments would prevent such transfers (even of modest additional functions) without fresh primary legislation. Again, I remind the Committee that there have been many transfers of responsibility to the Welsh Office throughout the course of its life. I refer to the transfers of responsibility for training, higher education and the arts. I am happy to say that all of those transfers were initiatives from the party opposite, very often under the stewardship of the noble Lord, Lord Crickhowell. So, there have been incremental increases and, by and large, in principle and very often in practice, they have worked well.

Reference has been made to the observations of the noble and learned Lord the Solicitor-General. We have provided opportunities in Clause 22 for correcting oversights. Of course, we want to do everything we can to avoid them in the first place. However, it may be that an obscure function in a rarely used old statute has been overlooked. We are looking for a stable constitutional settlement on the basis of confidence that there will be continuity.

The noble Lord, Lord Stanley of Alderley, in Amendment No. 66, seeks to provide that functions could be removed from the assembly at the behest of the government of the day. Some noble Lords have hinted that sometimes some governments, when they have large majorities, are careless of the views of others. The noble Lord's amendment provides for exactly that to occur in 20 or 25 years' time, perhaps when there is a difference in political complexion between Cardiff and Westminster.

We believe that Clause 22(4)(b) provides a level of security for the assembly. It is an intended lock. We believe that the noble Lord's amendment would remove that lock. In a contribution which far from being from the dark ages came from the enlightenment, the noble Lord, Lord Stanley, asked me specifically whether there was a veto under Clause 22(4)(b). An Order in Council could not take powers away by transfer order without the approval of the assembly. The noble Lord's construction of that provision is correct. It is important to repeat that Parliament could take away functions, but only by primary legislation, as I said earlier. The power to transfer functions by order cannot be used to remove functions unless the assembly agrees. Clause 102 of the Scotland Bill is to the same effect.

We believe—this comes to the principled approach that one seeks to have, whatever it is—that watering down the powers of the assembly would lead to a constant fear of the reimposition of rule from Whitehall by the back door. If anything was well calculated to cause dissatisfaction and disaffection among Welsh people about their continued existence in the Union, that would be a prime candidate.

4.45 p.m.

Lord Elis-Thomas

I am grateful to the Minister for giving way. I warmly endorse his last two sentences. I fail to understand why noble Lords opposite pursue this issue because if anything is calculated to fan the flames of the nationalism (against the revival of which the noble Lord, Lord Roberts of Conwy, continually strives), it is precisely such an override power. The fear of an override power is more likely to generate nationalistic feeling than is anything else.

Lord Williams of Mostyn

I am obliged to the noble Lord for that contribution.

Amendment No. 67 was consequential in the note provided for me, but offered itself so invitingly that I dealt with it out of chronological order.

I have some sympathy with Amendment No. 58 which stands in the name of the noble Lord, Lord Dixon-Smith. He would like the draft order to be laid no later than 16 weeks before the first elections on 6th May next year. I confirm absolutely, as I think that he was inviting me to do, the contents of the Solicitor-General's letter. I repeat that we intend that the order should have been approved by both Houses and made by Her Majesty before nominations for candidates close at the end of March. Of course, I cannot give a cast-iron guarantee because to an extent it depends on the pressure of business which is not entirely in my hands, particularly in your Lordships' House. That may mean that we are able to lay the draft order more or less than 16 weeks before the elections. I hope that the noble Lord will accept that we are happy to aim for his suggested timetable, but that we do not think it appropriate to make it a binding requirement in the legislation. The noble Lord has made his point of principle, but it would be unusual to set that in stone in statute.

Lord Dixon-Smith

I am extremely grateful to the Minister for his response. I express my gratitude to the noble and learned Lord, Lord Falconer of Thoroton, for his letter. I have already done so in his absence. The question that I sought to raise on the back of my rather small amendment was whether there would be a plain man's guide to the transfer written in English so that ordinary people could understand it and. perhaps more importantly, written in Welsh so that ordinary Welshmen could understand it. That would be an extremely useful document for candidates in the election and a very useful reference document for everyone. It would avoid having to go through an appalling mish-mash of legal statements and references back to other enactments. A plain man's guide would be very useful.

Lord Williams of Mostyn

I accept the spirit of what the noble Lord said and I am grateful to him. As he said "plain man's guide" I picked up the document in question. I am not sure for how many plain men I could write a guide. Either one prepares something that is so simplistic that it is of little value except on the basis of "mum and apple pie" or one gives the detail so that those who are genuinely interested can make their own researches. However, I shall pay every decent regard to what the noble Lord said. I believe that the answer is likely to be no, for the reason I have given, but I shall certainly consider it. I am grateful for the suggestion.

Amendment No. 59 deals with the question of whether the draft order should contain functions in each of the fields specified in Schedule 2. Subsection (2) does not require that the draft order contains functions in each of the fields in Schedule 2. It requires the draft order to make provision for transferring such functions in each of the fields as the Secretary of State considers appropriate. It is possible, though unlikely, that he may conclude that there should be no functions in the draft order in one of the fields in Schedule 2, so we do not believe that Amendment No. 59 is of benefit.

I have deliberately taken a little while because particular questions have been raised. I believe that some of the questions raised by the noble Lord, Lord Stanley of Alderney, are directed specifically to the next group of amendments. It is probably more convenient if I deal with them at that stage. However, I shall respond generally to his questions about the position in 1978 vis-à-vis the present proposals. The Secretary of State for Wales and the Welsh Office have taken on many more functions since 1978. It is for that reason that the functions in the transfer order are much more extensive than those listed in the 1978 Act. I believe that agricultural responsibilities were transferred to the Welsh Office in the course of 1978.

I hope that my responses are helpful. I have deliberately held back my detailed responses to the questions raised by the amendments in the names of the noble Lords, Lord Stanley of Alderley and Lord Willoughby de Broke. It is probably better if I deal with those issues at that time. On the basis of what I have put forward in a spirit of non-controversy I hope that all noble Lords will decide not to pursue their varying and contradictory amendments.

Lord Roberts of Conwy

I am sure that the Committee is grateful to the Minister for his interesting response to the debate. It would have been surprising had it not been so. All noble Lords realise that the clauses which transfer functions lie at the very heart of the Bill. As my noble friend Lord Crickhowell said, the transfer of functions is on a massive scale. It would be curious if we did not pause to consider the matter. We are passing functions from the Secretary of State to the assembly under some 300 Acts. We are passing very considerable powers to the assembly.

The noble Lord, Lord Elis-Thomas, referred to partnership. The noble Lord, Lord Hooson, referred to the civilised relationship that should exist between Parliament and the assembly. It is no part of our endeavour to belittle the assembly or to snatch functions properly transferred to it. But we believe that there is a duty incumbent upon Parliament to take care of the partner to whom it is transferring functions. Surely, we would be irresponsible if we did not take some kind of precaution in the event that matters did not go well and functions were not properly exercised by the assembly. Difficulties might occur either for the United Kingdom or for the assembly, as we have seen happen in local government, and we would be unable to take back functions given by this Parliament.

The Minister made much of the fact that Amendment No. 67 conferred an override power on the Secretary of State. However, it was pointed out that that power existed in the field of Community obligations and cross-border issues and functions. If they are not properly carried out, the Secretary of State has an interventionist role.

Lord Elis-Thomas

I do not want to delay the noble Lord but I have difficulty understanding his position. I believe that he is in danger of invalidating those very Conservative candidates who presumably will be standing for election to the assembly. Surely, if they are to be elected they are responsible for the devolved functions and are accountable to the electorate whereas international obligations and cross-border issues are precisely so—cross-border issues to do with bodies who have no say in elections to the assembly.

Lord Roberts of Conwy

I congratulate the noble Lord who is clearly launching into his campaign. As to Conservative candidates for the assembly—I can assure the noble Lord that there will be a contender against him—there is still a duty upon them, as upon us, to ensure that the assembly performs its functions satisfactorily. What we seek to do is to make some provision in the event that difficulties occur.

Earl Russell

I thank the noble Lord for giving way. Is he not failing to make the distinction between "unpopular" and ultra vires? Is it not rather unwise in this Chamber to suggest that assemblies may lose functions if they discharge them in a way that does not satisfy the Secretary of State?

Lord Roberts of Conwy

The Committee has already covered almost all the situations in which there can be malfunction. All that we seek to emphasise here is that the transfer of functions is entirely one way. I would have thought that a Parliament which executed a massive transfer of powers of this kind would make some provision in case those powers were not used appropriately. But I am reassured by the fact that it can be done by primary legislation. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for emphasising that point. I give way.

5 p.m.

Lord Islwyn

Is not the term "carrying out its functions satisfactorily" a relative one? There are differences, for instance, in the pattern of voting in Wales compared with England. We have been led to believe that people of the highest calibre will be encouraged to stand for this new assembly. I hope that many of those people of high calibre will be elected. If they are going merely to dance to the tune played at Westminster, they will not be of much calibre at all.

Lord Roberts of Conwy

All sides of the Committee realise that membership of the assembly should be of the highest quality. The general assumption behind this massive transfer of functions by Parliament to the assembly is that it is, as one noble Lord has said, a matter of trust. It is being done on trust. We are seeking to ensure that should there be any malfunction and substantial call for the return of powers to Parliament that should be provided for. It is possible for such a return of functions to take place, because of the continuing power of this Parliament in primary legislation. Bearing that in mind, and with the assurances that we have been given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 21 agreed to.

Clause 22 [Transfer of Ministerial functions]:

[Amendments Nos. 52 to 59 not moved.]

Lord Stanley of Alderley moved Amendment No. 60:

Page 13, line 14, at end insert— ("( ) No draft of an Order in Council laid before each House of Parliament under subsection (2) above shall make provision for transferring to the Assembly functions concerning animal health and welfare.").

The noble Lord said: I shall speak first to Amendments Nos. 60 to 63 and then follow with Amendment No. 64 which is slightly different. This series of amendments tries to clarify the Government's intentions regarding the transfer to the assembly of four areas of function relating to agriculture: animal health and welfare; food safety; health and safety; and pesticides. It is clear from the guide to the draft transfer of functions order published in May, that the Government: has not reached final decisions on all aspects of them".

The guide refers to some agricultural functions being exercisable by the Secretary of State for Wales and the Minister of Agriculture, acting together. An option is to split that joint function so that the assembly will be able to exercise the functions separately. The guide points out that before splitting the functions in that way: it is necessary to consider whether it is desirable to do so". I wonder what that phrase means. I hope that the Minister will agree that Parliament should be told now what is or what is not desirable.

The draft order proposes to transfer the main animal health and welfare legislation (the Animal Health Act 1981 and the Animal Health and Welfare Act 1984), but I wonder whether it would be sensible to have different regulations applying to animal diseases either side of the Border. Diseases, particularly animal ones, can spread easily, and are no respecters of boundaries.

Similarly, the main legislation on food safety (the Food Safety Act 1990) is on the list to be transferred, but in the case of some emergency would not it be desirable to have a quick and uniform UK plan? My noble friend Lord Willoughby de Broke has tabled an amendment on the subject. I am concerned also that it must be possible in such cases to transfer power back to the Secretary of State or to the assembly.

It is proposed under the draft order to transfer the Food and Environment Protection Act 1985 which includes provisions on the control of pesticides. Surely the Government do not intend to duplicate the specialist and carefully constructed system of scientific advisory committees which currently vet the safety of pesticides, which this place debated at considerable length when that Bill went through. I look forward to a positive answers to those queries, because time is running out.

I move now to Amendment No. 64 which, as I said, is slightly different. Clause 22(1) provides that a function can be transferred to the assembly to be exercised concurrently with the Minister of the Crown. The draft transfer order proposes to transfer the Town and Country Planning Act 1990, including provisions for a right of appeal against planning decisions to the Secretary of State.

It is desirable that planning decisions reached on appeal follow a consistent policy and are reached at arm's length from what can often be turbulent local politics surrounding a proposed development. I fear—I am always frightened of everything—that if the assembly had sole charge of reaching decisions on appeals there would be no guarantee of those decisions not becoming politicised in due course. For that reason, there is merit in having that power jointly with the Secretary of State.

I suppose that I should declare an interest. Anyone who has ever had experience of trying to obtain planning permission knows only too well how local authorities—I am sorry to say particularly my own in Anglesey—are swayed by public opinion, and, I fear, on occasions, by backhanders. Farmers today need to diversify to survive. They need to know that their applications to do so will be dealt with in accordance with the guidelines laid down and not on political or personal prejudice. The amendment's intention is to achieve that.

I suspect that the Minister, the noble Lord, Lord Elis-Thomas, and, of course, the Liberal Peers will say that I should be more trustful. Not only is my name Thomas, but 50 years of farming have made me always assume the worst. We are a revising Chamber, and that is the attitude that we should take. I beg to move.

Lord Willoughby de Broke

I speak to Amendment No. 64C which is intended to clarify the Government's intentions with regard to the devolvement to the assembly of food safety powers. The latest draft of the transfer of functions order lists the Food Safety Act as one of the pieces of legislation to be devolved to the assembly in respect of the powers currently exercised by the Secretary of State for Wales.

As the Minister will be aware, it was under the umbrella of the Food Safety Act 1990 that the beef bones regulations were laid. This is not the moment to rehash the arguments against those regulations which were so heavily criticised in a Motion debate in this place on 27th January last when an overwhelming majority of noble Lords voted that they be revoked.

It might be worth reminding the Committee that the only prosecution to date under those regulations was thrown out of court as they were held to be bad law and unworkable. Will the Minister confirm that through the devolved powers which are vested under the Food Safety Act, the Welsh assembly will have the power to revoke those oppressive and unnecessary regulations?

Lord Crickhowell

The Committee may wonder why Amendment No. 82, which concerns higher education in Wales, is grouped with amendments on agriculture. I believe that that has been done entirely to assist me. I have an engagement later this evening which I simply cannot miss. A debate now may also help a number of other noble Lords who have an interest in higher education in Wales.

My amendment contains a serious flaw. I drafted it entirely in terms of the University of Wales. As I shall elaborate later, my remarks apply equally to other higher education institutions in Wales. I shall set out some of the details of the possible impact on those institutions.

At Second Reading, I expressed anxieties about the future financial arrangements for the University of Wales. I referred to the matter in those terms in the Second Reading debate. The noble and learned Lord the Solicitor-General sought to reassure me. Subsequently he wrote me a detailed and helpful letter. I have to say that it does not reassure me, but it may be helpful to quote from it. He sets out clearly the present structure under which higher education in Wales is financed. On 5th May, he wrote: As you are aware, whilst the Secretary of State for Wales is currently responsible for determining the overall allocation each year for higher education in Wales, it is the responsibility of the Higher Education Funding Council for Wales"— fondly known, I understand, in university circles as HEFCW— to determine the actual allocation that each higher education institution receives for teaching and research. In determining the overall amount to be allocated to higher education, Ministers take full account of a wide variety of issues facing the sector". I emphasise that sentence. The advice of HEFCW on the sector's funding requirements is also sought and fully considered. There has for decades been an arm's length relationship between governments and HE institutions in order to maintain the traditional independence of universities. The Government believes it is sensible to maintain this approach under devolution, which is why the Higher Education Funding Council will continue in its present form. Therefore, whilst the assembly will have the responsibility for determining the overall allocation to higher education in Wales, it will not assume responsibility for making allocations to individual institutions. That, as at present, will remain the responsibility of HEFCW. The Assembly will also not have any powers to abolish HEFCW, and the ability of Research Councils to fund research in Welsh institutions is also not affected by the Bill. Given these provisions the Government remains firmly of the view that there is no requirement for the allocation of the overall resources for higher education in Wales to become a joint function of the Assembly and the UK Government. As at present, the sector will have opportunities to press its case in order to seek to secure the level of funding it requires. The Assembly will also no doubt continue to seek the advice of HEFCW on the sector's funding requirements". Yes, but the problem lies in a later paragraph in the Solicitor-General's letter in which he states: The Government had already made it clear that the Barnett formula will continue to be used for determining changes to the whole Welsh Block and any revision to it will be preceded by a full needs assessment in which the Assembly will be involved". The problem about the Barnett formula is that it is population based. I cannot remember the exact percentage, but about 5.5 per cent. of the total spend is allocated to Wales. The university expenditure has no relationship with the population of Wales. The University of Wales and the other institutions to which I shall refer in detail in a moment are important and great Welsh institutions, but they are also great British institutions. Only a minority of the students come from Wales. Of the approximately 14,000 members of Cardiff University, of which I have the privilege to be president, a large number come from England and Scotland and at present about 1,300 from other parts of the world.

For legitimate and understandable reasons, the assembly may be seriously concerned about the level of expenditure which falls on its budget and which is required in effect to finance the education of people from other parts of the United Kingdom. The numbers are large. For 1998–99, Cardiff University will receive in grants over £52.5 million, nearly £36 million for teaching and over £16.5 million for research. The total for higher education in 1998–99 for all the Welsh higher education institutions amounts to over £240 million. For example, the University of Glamorgan receives over £31 million. The North-East Wales Institute receives £10 million and the Swansea Institute of Higher Education over £9 million. Those are large sums of money. The total is a large sum in relation to the total Welsh block of around £7 billion.

Anyone who has been involved in public expenditure rounds—as many in this Committee have—will know the pressures that arise from the insatiable demands for the funding of the health service, education and other priorities which will be the responsibility of the assembly. There is a fear in university circles that there will be a temptation to whittle away at the initial block allocated to higher education, or at least not to increase it at the same rate at which it is being increased to meet rising numbers, inflation or other factors in the United Kingdom as a whole.

It is a legitimate anxiety which I share. It should give us all considerable grounds for concern. The university sector is now a highly competitive sector. Cardiff has recently leapt sharply up the assessment table for research institutions. Perhaps I may take this opportunity to put on the record the fact that the tables published recently in The Times and other journals unfairly treat the Welsh institutions. The teaching assessment basis is different; the marking is different; and the necessary adjustments have not been made. Therefore a number of the Welsh universities come lower down the table than they should do if the calculation were made on a proper basis.

However, that is not the central point. People are looking closely at the performance of the university sector and individual institutions in it. It is a highly competitive business. To use the old phrase, Welsh colleges and universities have to compete on a level playing field with those elsewhere in the United Kingdom. All I seek to do in my amendment is to provide a protection so that the funding arrangements will ensure that the universities are able to act as they have in the past.

I refer again to the letter of the noble and learned Lord the Solicitor-General in which he said: Ministers take full account of a wide variety of issues facing the sector". When the present allocations were initiated by the Secretary of State for Wales they were not controlled by or decided on the basis of the Barnett formula. They were decided on a basis necessary for higher education in Wales after the responsibility had been transferred to the Welsh Office. It is highly unsatisfactory that we should look to the future in a situation where the Barnett formula may have a damaging impact on Welsh higher education.

The guide to the transfer of functions order, to which I and others referred when speaking to an earlier set of amendments, states that, where appropriate, Schedule 1 directs that certain functions are to be exercised concurrently by the assembly and a Minister of the Crown. That means that both the assembly and the Minister can exercise the power with respect to Wales. The examples given in the guidance notes are interesting. It goes on to state, Examples of Section 5 of the Science and Technology Act 1965, power to incur expenditure in carrying on or supporting scientific research, and Section 57 of the Transport Act 1968 grants research and development in connection with transport services". All I seek to do is to give such concurrent powers. Indeed, I have lifted the wording of my clause from Clause 21 of the Bill, which provides that concurrent powers can be granted. My object in moving the amendment is to protect the higher education institutions in Wales, to make sure that they are adequately funded in the future and to make sure that if the Barnett formula imposes unavoidable tax constraints on the ability of the assembly to fund higher education the Secretary of State and the Government at Westminster can intervene in order to protect the university.

Lord Cledwyn of Penrhos

I followed the references to our university made by the noble Lord, Lord Crickhowell, on Second Reading and the discussion he said he had had during the past few months with his colleagues in Cardiff on the present situation of the university. I have a similar interest in the University of Bangor and before that as pro-chancellor of Aberystwyth. We are fortunate tonight that we have my noble friend the Minister, who is now pro-chancellor. I am sure he will agree that the people of Wales—north, mid and south—are very proud of their university. We must not forget that the university came into existence more than a century ago because the people of Wales wanted it and because they gave their limited money so that their children, like those in England and Scotland, might have their colleges. It is one of our greatest achievements, of which we are proud. We are aware that there is an intake into the Welsh universities from England and elsewhere, but that does not change the name of the University of Wales or its character.

The members of the assembly will see education as central in its priorities for Wales, and we shall all support that. We are concerned that the University of Wales should be properly funded on the same level as the universities of England and Scotland. I regret that we have run into real difficulties in recent years.

The assembly must be treated properly. It must be enabled to ensure that the colleges have the income to carry out their range of work at the appropriate level. The Welsh assembly can launch the University of Wales into a new era. That is what we intend should take place, and it is one of the reasons why we want an assembly. However, I must draw the attention of the Committee to the fact that the general view, and the amendment, are in breach of the principle of devolution upon which the Bill has been constructed. My understanding is that the assembly must be able to determine its policies and its priorities of expenditure without being under a duty to consult a Whitehall Minister, who is unlikely to understand the Welsh background. I feel obliged to draw this to the attention of the Committee. We must be careful not to avoid one of the fundamentals of the Bill.

The Earl of Courtown

I shall speak to Amendments Nos. 60 to 64 which stand in my name and that of my noble friend Lord Stanley of Alderley. First, I declare a former interest. I am a chartered surveyor, qualified in the rural practice division of that institution, and before taking part in your Lordships' House was for a number of years in practice in Wales as a land and estate manager.

I understand some of the concerns expressed by the noble Lord, Lord Elis-Thomas, but I do not believe that they are quite right. The issues covering agriculture are of prime importance. My noble friend and myself are not making an effort to throw a spanner in the works of the Bill but are trying to cover practical, important issues.

This group of amendments deals with the transfer of functions relating to agriculture, animal health and welfare, food safety, health and safety and pesticides. In connection with those issues, I am looking forward to hearing what the Minister has to say when he speaks to the new schedule proposed in Amendment No. 76A. It is not entirely clear to me whether that will solve the problems which concern me.

The draft order proposes to transfer those issues, particularly in the case of animal health and welfare legislation. Surely it would be sensible to have the same regulations each side of the border; for example, in the case of foot and mouth disease, which is no respecter of borders or boundaries. The same principle applies to food and safety. A quick and uniform approach to a worst possible scenario throughout the UK would be imperative. As regards pesticides, such duplication of highly specialised systems could be considered ill-advised and wasteful.

As regards Amendment No. 64, the subject of planning is often debated in your Lordships' House. Consistency in decisions must always be seen to be carried out. The Bill as currently drafted removes the requirement of functions being exercisable only by a Minister once he has consulted or secured the agreement of another Minister. Our amendment would require any town and country planning functions which were to be transferred to be exercised concurrently with a Minister of the Crown, so delivering consistency of decisions.

I am looking forward to hearing what the Minister has to say in reply to my amendments and to those of my noble friends Lord Crickhowell and Lord Willoughby de Broke.

5.30 p.m.

Lord Callaghan of Cardiff

It is unfortunate that these two debates are running together. Not having scrutinised the Marshalled List with great care, I did not realise that we were going to discuss education in the middle of discussing agriculture. Therefore, I shall not comment on what the noble Earl has just said. I shall simply revert to the amendment tabled in the name of the noble Lord, Lord Crickhowell.

I have some sympathy with what the noble Lord is trying to do, but I believe that the amendment goes much too far in specifying that "any function" of the assembly must only be "exercisable" after consultation with a Minister. I have a simple approach to university funding and education: the further the Government keep away from those things the better. I would be most concerned if the assembly were to take a more detailed interest in the various universities which make up the University of Wales than is taken at present by the Higher Education Funding Council for Wales. Indeed, I believe that the present system is perfectly appropriate. I can say that because I have had some 10 years' experience in that respect. It enables the border considerations between English and Welsh universities to be reconciled very easily.

When I reflect upon the amount of research that is carried out jointly by Welsh and English universities and the interconnection that exists between them in pursuing those aims, I must say that I would much prefer to see such matters left as far as is possible to the Higher Education Funding Council for Wales and to the similar council in England. I hope that the assembly will not interfere too much in such matters. Therefore, rather than promote close ministerial collaboration between England and Wales, which will almost certainly lead to greater intervention, on the whole I would go in the other direction. I hope that my noble friend, the Pro-Chancellor of the University of Wales, will agree to do so in his capacity as a Minister of the Crown.

The Earl of Balfour

I have a few brief comments to make. First, Amendment No. 62 deals with health and safety in the workplace. I believe that the Health and Safety Executive should be a universal body within the United Kingdom to ensure that all standards are exactly the same. Secondly, the last two lines of Amendment No. 64C refer to, other food and ingredients for human consumption derived from bovine animals". After the word "human", I wish that we could add the word "animal". I shall explain why. I am quite certain that one of the main causes of BSE was that herbivores were given extracts from meat. I am sure that that is what triggered it off.

Thirdly, when you buy tinned food for a cat, a dog or any pet, it is most disturbing to read the wording on the tins which specifies that the contents contain derivatives of this, that or the other, without giving details of precisely what the can contains. I wish that we could cover both food for humans and food for animals in this provision. I am sure that that would help many a farmer with a dairy herd who wants to keep up his milk yields and who has, therefore, had to give his herd some artificial food. Most of them really do not have a clue what the food is made of.

Lord Simon of Glaisdale

Members of the Committee heard an important speech from the noble Lord, Lord Crickhowell. It was obviously deeply researched and, indeed, was cogently argued. I shall make only one minor point. When we talk about the Barnett formula in relation to Wales, it should be known as the Barnett/Rees formula. I point that out to the Committee because it was as Chief Secretary that the noble Lord, Lord Rees, extended the scheme to Wales. Therefore, he should have the credit for doing so. It only goes to show that blood is thicker than bilge.

I turn now to the important intervention of the noble Lord, Lord Callaghan. Since about the third quarter of the last century, the Government in this country have kept themselves separate—that is to say, at a distance—from the universities: the arm's length approach. Today there is a buffer between the Government and the universities; namely, the Higher Education Funding Council. If such responsibility were transferred to the assembly, I see no reason why it should not, as I believe it should, adopt the arm's length approach and transact its relationship through the appropriate HEFC.

I move on from those elevated matters to the more mundane subject of food safety. Amendment No. 61 and Amendment No. 64C, tabled in the name of the noble Lord, Lord Willoughby de Broke, are in total conflict. The former would keep food safety matters as a responsibility of Westminster, while the proposal from the noble Lord, Lord Willoughby de Broke, is that they should be handed over specifically to the assembly.

When Members of this Chamber discussed the matter in the context of the order of the Ministry of Agriculture, the noble Lord, Lord Stanley of Alderley, appeared to be reduced to eating his dog's dinner. Therefore, on that ground, I should have thought that he would have much preferred Amendment No. 64C. For myself, I can see no reason why food safety, or indeed consumer protection as proposed in a later amendment tabled by my noble friend Lord Elis-Thomas, should not be the responsibility of the assembly. Indeed, I see every reason why they should be.

Viscount Bledisloe

Into this extraordinary mixture of sheep and university students, I should like to add some brief comments on Amendments Nos. 60 and 63. As a part-time farmer, I confess that I find it a little strange to conceive that there should be different rules for tractor safety, or for pesticides, either side of the Border. However, if there really must be such differences, what would happen to a farm which straddles the Border? Animals move, tractors move and pesticides may be spread on any field on a farm. Will some poor farmer whose farm happens to straddle the Border really be obliged to obey different rules and thereby have his tractors differently equipped, while using different pesticides either side of the Border? Alternatively, will there be some provision whereby such a farm can be treated in its entirety as belonging one side of the Border and not the other, so that a farmer who has, say, hundred hectares in Wales and only 30 hectares in England can be treated as a Welsh farmer and not be obliged to change the cab of his tractor or the mix of his pesticides when he crosses the Border?

Lord Molyneaux of Killead

I hope I can be of some small assistance to my noble friend. If he cares to visit the land frontier of the United Kingdom between Northern Ireland and the Irish Republic he will find that cross-border traffic, particularly in livestock, is made easy by the construction of a long shed with doors at either end rather like an aircraft hangar. Not only do livestock progress from one end to the other on foot, but there are good tarmac roads leading from either end and whole lorries or sometimes four lorries come in and park there overnight when the Customs staff are not looking and out they go on the other side. Thanks to our wonderful common agricultural policy they manage to acquire subsidy at least six times a day on the same cattle.

Lord Prys-Davies

I wish to speak to Amendment No. 64 and then to Amendment No. 82. Both these amendments have one thing in common. I believe both would involve consultation with a Minister of the Crown. As regards Amendment No. 64, it would be helpful and reassuring if the Minister could indicate how the Welsh assembly will discharge those quasi-judicial functions. A planning appeal is a quasi-judicial function. It would be helpful if the Minister could give an indication of how that will be discharged.

I now turn to Amendment No. 82. I should declare an interest as currently I have the privilege to be a president of the University of Wales, Swansea. I have listened carefully to the speech of the noble Lord, Lord Crickhowell, and the case which he has advanced. Unfortunately, I do not have a copy of the letter from the noble and learned Lord the Solicitor-General. Perhaps that is my fault. I draw comfort from a statement by the official historian of the University of Wales, Aberystwyth, Mr. E.L. Ellis, who noted in the official history of that university that, The struggle for Welsh national identity and the striving for educational opportunity have always gone hand in hand". I for my part do not think that the national assembly will easily depart from that tradition. I have a feeling that it will give investment in higher education a high priority indeed. If I am wrong, it seems to me that there is an objection in principle to the amendment which has been ably spoken to by the noble Lord, Lord Crickhowell. My noble friend Lord Cledwyn has referred to that. The essence of devolution is that the national assembly is to be responsible for the devolved services and is to have the freedom to determine how that block grant is to be distributed between devolved services. I believe that that function should be exercised without consultation with another Whitehall-based department. For those reasons I am unable to accept the amendment which has been spoken to by the noble Lord, Lord Crickhowell.

5.45 p.m.

Lord Roberts of Conwy

This is indeed a curious mix of amendments. I am happy to endorse what was said by my noble friends Lord Stanley of Alderley and Lord Willoughby de Broke about their amendments. I see no reason to add to that. I thought that the noble Viscount, Lord Bledisloe, made a fair point in talking about farms that straddle the border. I know that this matter is of concern to the fanning unions and of course to the farmers who are involved in "split farming" as we might call it, where some land is in Wales and some is outside it.

My noble friend Lord Courtown dealt clearly with the difficult issue of planning appeals. After all, given the fact that so many powers and responsibilities will remain at Westminster—for example, the primary legislation on which so much of planning legislation is based—it could be wiser to make the determination of planning appeals a joint function. I shall be anxious to hear the Minister's response to that point and to the quasi-judicial point raised by the noble Lord, Lord Prys-Davies. My noble friend Lord Crickhowell has made a powerful plea on behalf of the University of Wales and the Higher Education Funding Council. Of course he reflects a concern which is deeply felt in the university. The Minister, as pro-chancellor, will be well aware of that. I was present at a meeting of the University Court which he chaired where a resolution was passed expressing that concern. I should declare an interest and say that I was present as President of the University of Wales College of Medicine.

The concern about funding through the assembly is widespread and extends to other devolved fields. I must admit immediately that I think that higher education is in a special position in that, as the noble Lord, Lord Crickhowell, pointed out, the population of the university and higher education sector is not strictly speaking related to the population of Wales, and neither is its growth. I am sure that we shall undoubtedly return to this subject of funding of the higher education sector and other sectors when we reach Part IV of the Bill and Clause 82 which deals with the Secretary of State's power to make grants to the assembly. We look forward eagerly to receiving any kind of assurance that the Minister can give. I am sure that he will give of his best, bearing in mind his alter ego as pro-chancellor.

Lord Williams of Mostyn

These amendments point in different directions, as has already been observed. Those in the names of the noble Lords, Lord Stanley and Lord Crickhowell, seek to restrict the transfer of functions. The noble Lord, Lord Willoughby de Broke, seeks to require that other functions are transferred. Amendments Nos. 60 to 63 in the names of the noble Lord, Lord Stanley, and the noble Earl, Lord Courtown, seek to prevent certain functions from being transferred to the assembly.

The noble Viscount asked what happens when you have a farm on both sides of the border. There are a few cases of a farm straddling both sides of the border. At present there are different regulations which obtain on Welsh land as opposed to English land. I shall give examples to assuage any scepticism about my proposition. The moorland livestock extensification (Wales) regulations and the Rural Development Grants Agriculture (Wales) pertain only to land on the Welsh side of the border.

Viscount Bledisloe

Surely those are regulations which relate to the land itself. The point I sought to make was that as regards regulations concerning health and animals, the same animal and the same tractor and the same pesticide may be used or stationed one day on one side of the border and another day on the other side. We all recognise that one may have land part of which is in an environmentally sensitive area and part of which is not, and different regulations apply. My concern is that extremely mobile things such as tractors and sheep may come under different regulations each time they push through a hedge.

Lord Williams of Mostyn

I am grateful for that further illustration. Perhaps I may deal with it. Some of the amendments would prevent a transfer order transferring functions with respect to animal health and welfare, food safety, health and safety in the workplace and the regulation of pesticides, as the noble Lord, Lord Stanley, helpfully set out in his sub-categories. Health and safety are not among the functions of the Secretary of State for Wales and the Government have no plans to transfer any such functions to the assembly. We believe it wrong to rule that out for all time. In five, 10 or 20 years' time, a different view might be taken. But at present there is no possibility of health and safety being transferred as one of the functions of the Secretary of State.

As was pointed out by a number of noble Lords, the Secretary of State has functions with respect to animal health, welfare and food safety. We intend to transfer those to the assembly. In those cases, and therefore also in relation to the amendment tabled in the name of the noble Lord, Lord Willoughby de Broke, we are considering retaining the arrangements under which functions are exercised jointly with the Minister of Agriculture. I hope that deals with the specific question put by the noble Viscount.

To turn to the noble Earl's point, we believe that pesticides are in a different category. We are considering not transferring those to the assembly for the reasons given; namely, there is a substantial body of acquired expertise. The Welsh Office is entirely dependent on specialist advice from MAFF's Pesticides Safety Directorate and the Health and Safety Executive. We believe that there is a case, examining each case individually, for not transferring those.

We do not believe that there ought to be a limit in the way in which ministerial functions may be transferred in future. If a successor government do not wish to transfer functions, they will not bring forward an order; and if Parliament does not wish the functions to be transferred, then it will not approve such an order. We think that that is a sensible way of dealing with the matter.

Amendment No. 64 tabled by the noble Lord, Lord Stanley of Alderley, requires that the transfer order makes the determination of planning appeals a concurrent function, one which either the assembly or the Minister could exercise. We do not believe that that is practically workable for developers, local authorities or individuals. It would not be clear who was going to decide any particular planning appeal since either the assembly or the Minister could exercise that function. We do not think that there should be uncertainty about quasi-judicial functions. My noble friend Lord Prys-Davies asked that question specifically. The function will be transferred to the assembly, and I dare say in due time the assembly will wish to give careful attention, when considering its standing orders and methods of procedure, to how it will deal with the problems he identified.

Turning to Amendment No. 82, there is hardly any noble Lord who has spoken who does not seem to have some position of responsibility in the University of Wales. However, I stress, as your Lordships kindly have done already, that I am speaking on behalf of the Government and not the university.

The noble Lord, Lord Merlyn-Rees, has also indicated to me that the University of Glamorgan has inexplicably been left out; but the noble Lord, Lord Crickhowell, has already confessed and avoided that error.

The points made by your Lordships, and in particular by my noble friend Lord Callaghan of Cardiff, are extremely important. We have given a good deal of thought to the matter. We believe the solution we have arrived at to be a legitimate safeguard for the university's interests. We have specifically decided to retain the Higher Education Funding Council for Wales.

The functions of that council will remain the same. All that the assembly can do is what is presently capable of being done by the Secretary of State for Wales. It is possible, of course, that the assembly might wish to give increased funding to HEFCW within its budgetary constraints. The assembly will not be able to abolish the funding council under Clause 29—though I appreciate that it may be that the noble Lord, Lord Elis-Thomas, will wish us to alter that. We have therefore decided to recognise the importance of academic institutions in the life of any community, not least on historical and cultural grounds in Wales, to maintain HEFCW and simply to keep intact its functions but transferring the functions that the Secretary of State for Wales hasvis-à-vis HEFCW to the assembly. We believe that that is the right way to do it.

Other than that, the Secretary of State has a very limited function in respect of the University of Wales which I mention for the sake of completeness. It is advising Her Majesty from time to time on changes to the charter and statutes, as is seen in the White Paper. The assembly will not take over that role.

Apart from the historical attachment that has been mentioned, there is the enormous economic impact made by the University of Wales to the prosperity of Wales. To take the University of Wales at Cardiff as an example, papers have been produced making it plain that enormous economic benefit goes out to the community generally from institutions of high quality.

We do not see, however, that HEFCW should be treated any differently vis-à-vis assembly decisions, decisions with respect to the Welsh Development Agency, funding for local government or, for instance, plans for improving the trunk road network. The assembly is well placed, first, to identify, and, secondly, to protect the true interests of university education in Wales.

I hope that I have been able to deal with the points made. On that basis, I invite noble Lords to withdraw their respective amendments.

Lord Willoughby de Broke

Before the Minister sits down, will he confirm that the effect of his remarks is that the Welsh assembly will not have the power to revoke the beef bones legislation because it will be subject to joint consultation with the Minister of Agriculture?

Lord Williams of Mostyn

The noble Lord is right. If I did not make that plain, I ought to have done. Because the powers remain joint, the assembly alone will not be able to revoke them.

Lord Stanley of Alderley

Before withdrawing my amendment, perhaps I may answer one or two of the questions put. The noble Viscount, Lord Bledisloe, asked about the border problem. If he can wait until then, I have the perfect answer in Amendment No. 196B, which I am absolutely sure the Minister will accept. I leave him in anticipation as to what that is.

I was extremely pleased that the noble Lord, Lord Prys-Davies, saw the point over the planning appeals. The matter needs considerable thought. When I suggested this amendment to certain organisations, I just wanted the Secretary of State to do it. That is what I should like. However, I was told that that would be most uncharitable to the assembly—hence the division of power. But serious consideration is needed as to how it will be done. It should be done judicially and quickly and in accordance with the guidelines in order to give those of us on the ground some idea of what we are doing.

I thank the Minister for his answers. He has obviously not been a Minister for long enough to know that he should not give any answer, at any time, at any price. However, I thank him. I am not sure that I liked the answers. As I understood it, the assembly won two and Westminster won two, if I may put it as brutally as that. I am grateful for the Minister's replies and beg leave to withdraw my amendment.

Lord Willoughby de Broke

I have to confess that I am rather disappointed with the Minister's reply to my Amendment No. 64C. It seems inconsistent with what we have heard this afternoon. All—

Baroness Farrington of Ribbleton

Perhaps the noble Lord will forgive my interrupting him. As the noble Lord, Lord Stanley of Alderley, has withdrawn his amendment, I think that we ought to deal with that procedurally before moving to the next.

Amendment, by leave, withdrawn.

[Amendments Nos. 61 to 64 not moved.]

Lord Stanley of Alderley moved Amendment No. 64A:

Page 13, line 14, at end insert— ("( ) No draft of an Order in Council laid before each House of Parliament under subsection (2) above shall make provision for transferring to the Assembly functions concerning shipping.").

The noble Lord said: I am sorry, I do not know who is in a muddle. Amendment No. 64A is in the next grouping and is totally different from what we have been dealing with; it does not have to do with sheep or students.

I tabled Amendments Nos. 64A and 64B, which are very simple amendments, as a member of the committee of management of the RNLI. As the Minister probably knows, the RNLI undertakes—indeed, binds itself to performing—certain sea rescue services which are determined in discussion with the Department of the Environment, Transport and the Regions. Briefly, the RNLI is interested in the EC shipping register, navigation systems and aids, yachting, boating, pleasure craft, water sports and other leisure activities, beaches, fishing boats and shipping safety, marine engineering, marine distress signals, construction and equipment standards, VAT and its application to charities and charity-law reform. I realise that the last two areas should be discussed under Clause 114. My reason for raising the other areas of interest of the RNLI is to ask the Minister whether he can give an assurance that none of the matters I have mentioned is likely to be devolved. I am sure he can see the problem it would cause if, for instance, the assembly wanted the RNLI to adhere to a different rescue code from that of the rest of the United Kingdom. In passing, I should say that currently these practices are similar throughout the United Kingdom and the Republic of Ireland.

The Committee may remember that there was, and is, a problem over powered water craft. I see the noble Baroness, Lady Farrington, smiling. I am sure that the Minister will understand, as did the noble Baroness at Question Time a month or so ago, that diverse regulations for such craft would not be sensible. I beg to move.

The Earl of Balfour

I am also interested in these amendments, perhaps on slightly different grounds. So far as concerns shipping, I trust that the buoyed channels, lighthouses, and so on, will continue to be managed by the Trinity House organisation, as has been the case for a long time.

As regards the Maritime and Coastguard Agency, a concern of us all, including, I am sure, the Government, is to prevent drugs coming into the country. I believe that the Coastguard and Customs and Excise services need to be under national control rather than an area control. In this respect, my noble friends Lord Stanley and Lord Courtown have raised important points.

Lord Mackay of Ardbrecknish

Perhaps I may briefly intervene on these two amendments in the name of my noble friend Lord Stanley of Alderley. I trust that there was never any intention to devolve shipping and the Maritime and Coastguard Agency. I say that as someone who in the past, for some half a year, had responsibility for shipping and the Maritime and Coastguard Agency. It seems to me inconceivable that responsibility for these matters should be devolved.

Shipping is a complicated and international matter. I do not believe that it would be possible for the assembly to have a different shipping policy from that of the UK generally. It would also be inconsistent with the concept of devolution. The same is true of the Maritime and Coastguard Agency. My noble friend Lord Balfour made the point very well. I do not believe that we shall even risk the ire of the noble Lord, Lord Elis-Thomas, by suggesting that these are not matters which should be devolved to the Welsh assembly. I fear that the Minister is being invited to answer the question, "Have you stopped beating your wife?". I hope he will be able to give an assurance that these matters not only will not be devolved in the first tranche but will not be devolved in any subsequent tranches, which is really the problem with issues such as this.

Lord Williams of Mostyn

In answer to the question, "Have you stopped beating your wife?", I think I ought to say, "Yes and no". In respect of the more fundamental question, I am grateful for the opportunity given to me by the noble Lords, Lord Stanley of Alderley and Lord Mackay of Ardbrecknish, to give an assurance on this point. As the noble Lord rightly observed, these are not functions of the Secretary of State for Wales. We have no plans to transfer them to the assembly. As I said on earlier occasions, we do not see a case for ruling them out indefinitely, but I stress that we have no plans, in the first stage or any subsequent stage, to remove these powers or functions to the assembly, substantially for the reasons that have been put forward: that there are some aspects of national life which are best dealt with more generally than specifically.

Lord Stanley of Alderley

I am most grateful to the noble Lord. That will be a great reassurance. I hope I shall not have to make him stand by it. There are marginal cases, as the noble Baroness knows, when local authorities try to put in different regulations which could cause problems. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 64B not moved.]

Lord Willoughby de Broke moved Amendment No. 64C:

Page 13, line 14, at end insert— ("( ) The draft of an Order in Council laid before each House of Parliament under subsection (2) above shall include provision for the transfer to the Assembly of those powers exercisable by Ministers of the Crown in relation to Wales to make provision under the Food Safety Act 1990 in relation to bones, bone-in beef and other food and ingredients for human consumption derived from bovine animals.").

The noble Lord said: I am a little disappointed with the Minister's reply, which seems to be inconsistent with the feelings and sentiments that have been expressed this afternoon in this Chamber. Some of my noble friends on these Benches have sought to withdraw powers from the Welsh assembly. My amendment seeks to give powers to the Welsh assembly; namely, the power to choose whether to eat beef on the bone. That seems entirely consistent with the powers which are to be devolved to the assembly under the Food Safety Act. As the noble Lord, Lord Elis-Thomas, said, either this is a responsible measure for devolution or it is not. As the noble Lords, Lord Hooson and Lord Thomas of Gresford, said, we must not hold back but must trust that the Welsh assembly will work well. It seems to me inconsistent to retain the powers of the Ministry of Agriculture for this item under the Food Safety Act. I beg to move the amendment and should like to test the opinion of the Committee on it.

6.7 p.m.

On Question, Whether the said amendment (No. 64C) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 96.

Division No. 1
CONTENTS
Anelay of St. Johns, B. [Teller.]	Lauderdale, E.
Annaly, L.	Long, V.
Berners, B.	Marsh, L.
Biddulph, L.	Masham of Ilton, B.
Broadbridge, L.	Monson, L.
Chesham, L.	Moran, L.
Clark of Kempston, L.	Newall, L.
Cumberlege, B.	Northesk, E.
Denbigh, E.	Pender, L.
Dixon-Smith, L.	Renton, L.
Harlech, L.	Rotherwick, L.
Harmsworth, L.	Saltoun of Abernethy, Ly.
Hemphill, L.	Seccombe, B.
Kenyon, L.	Skelmersdale, L.
Keyes, L.	Stanley of Alderley, L.
Kimball, L.	Vivian, L.
Knight of Collingtree, B.	Willoughby de Broke, L. [Teller.]
NOT-CONTENTS
Acton, L.	Linklater of Butterstone, B.
Addington, L.	Lockwood, B.
Ashley of Stoke, L.	McIntosh of Haringey, L. [Teller.]
Barnett, L.
Berkeley, L.	Mackie of Benshie, L.
Blackstone, B.	McNair, L.
Borrie, L.	Maddock, B.
Brooks of Tremorfa, L.	Mar, C.
Callaghan of Cardiff, L.	Merlyn-Rees, L.
Carlisle, E.	Milner of Leeds, L.
Carter, L. [Teller.]	Mishcon, L.
Chorley, L.	Molyneaux of Killead, L.
Cledwyn of Penrhos, L.	Monkswell, L.
Clinton-Davis, L.	Montague of Oxford, L.
Cocks of Hartcliffe, L.	Morris of Manchester, L.
Craig of Radley, L.	Napier and Ettrick, L.
David, B.	Nicol, B.
Davies of Coity, L.	Orme, L.
Dean of Beswick, L.	Paul, L.
Dholakia, L.	Pitkeathley, B.
Donoughue, L.	Plant of Highfield, L.
Dormand of Easington, L.	Ponsonby of Shulbrede, L.
Elis-Thomas, L.	Prys-Davies, L.
Evans of Parkside, L.	Puttnam, L.
Falconer of Thoroton, L.	Ramsay of Cartvale, B.
Farrington of Ribbleton, B.	Randall of St. Budeaux, L.
Geraint, L.	Rendell of Babergh, B.
Gilbert, L.	Renwick of Clifton, L.
Glenamara, L.	Richard, L. [Lord Privy Seal.]
Graham of Edmonton, L.	Russell, E.
Grantchester, L.	St. Davids, V.
Grenfell, L.	Sefton of Garston, L.
Grey, E.	Sheppard of Liverpool, L.
Hampton, L.	Simpson of Dunkeld, L.
Hanworth, V.	Smith of Gilmorehill, B.
Hardy of Wath, L.	Steel of Aikwood, L.
Haskel, L.	Stoddart of Swindon, L.
Hilton of Eggardon, B.	Stone of Blackheath, L.
Hollis of Heigham, B.	Thomas of Gresford, L.
Hooson, L.	Thomas of Walliswood, B.
Hoyle, L.	Tordoff, L.
Irvine of Lairg, L. [Lord Chancellor.]	Wallace of Saltaire, L.
	Warnock, B.
Islwyn, L.	Whitty, L.
Jenkins of Hillhead, L.	Williams of Crosby, B.
Kennedy of The Shaws, B.	Williams of Elvel, L.
Kennet, L.	Williams of Mostyn, L.
Kilbracken, L.	Winchilsea and Nottingham, E.
Kirkhill, L.	Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.17 p.m.

[Amendments Nos. 65 and 66 not moved.]

Lord Williams of Mostyn moved Amendment No. 66A:

Page 13, line 25, at end insert— ("( Schedule (Transfer etc. of functions: further provisions) (which makes further provision about the transfer etc. of functions by Order in Council under this section) has effect.").

The noble Lord said: Amendment No. 66A is largely self-explanatory. It gives us the opportunity of debating what functions the assembly is to have in England with respect to cross-border bodies; that is, bodies whose activities relate to Wales and other parts of the United Kingdom. In moving Amendment No. 66A, I shall speak also to the other amendments in my name in this grouping.

The main effect of the Government's amendments is to replace Clause 23 with a new schedule and I shall therefore concentrate on the paragraphs of the new schedule that are new or changed and on the amendments to Clauses 30, 45 and 59 that flow from them. It may be helpful if I reply at the end of our discussions on this matter to questions raised in relation to Amendments Nos. 80, 81 and 196B, which are also included in the group.

The present position is that the Government have flexible arrangements to deal with issues which straddle the border between Wales and England. Obviously, the Rivers Severn, the Wye and the Dee all rise in Wales and flow through parts of England. Cross-boundary issues plainly arise in that regard. For many years we have had in place sensible arrangements whereby the Welsh Office looks after the administration of some issues to do with waters and rivers which extend beyond Wales into parts of Herefordshire and Cheshire and, similarly, the DETR administers some matters for Montgomeryshire.

There does not seem any compelling reason why we should now draw a doctrinaire line down the border between Wales and England and command the waters to part, or why we should have more costly and complex administrative arrangements on the ground. This is the reason why Clause 23(6) allows the assembly to be given functions with respect to cross-border areas, that is, areas including a part but not the whole of England as well as the whole or part of Wales.

We have looked again at the drafting of these provisions, bearing in mind what was said in debates in the other place. Paragraph 3 of the new schedule replaces paragraphs (c) and (d) of Clause 23(6). The Committee will have seen that the amendment limits the range of functions that the assembly can be given in England to those related to watery matters such as rivers, water courses, water supply and land drainage. It makes clear that the assembly can be given functions only in parts of England that adjoin Wales and only if the assembly is given the equivalent function for the whole or part of Wales. This is a narrowing compared to Clause 23(6)(c) as it presently is.

Paragraph 3 of the new schedule makes clear that the assembly can be given functions in respect of any cross-border body rather than those mentioned in Clause 23(6)(d). This is to ensure that there is no doubt about the ability of the transfer order to confer functions on the assembly in respect of bodies as diverse as the Environment Agency, Audit Commission, Intervention Board and the North West and North Wales Sea Fisheries Committee, to give some examples; as well as undertakers such as Dwr Cymru.

The Bill contains appropriate mechanisms to reflect the fact that, while the assembly may be given functions in parts of England, it will not be elected by people who live there. These mechanisms will not be affected.

The first point I would make is that Parliament has to approve the transfer order before it takes effect. All Members of this House and of the other place will be able to have their say.

We accept that it is important for the necessary accountability arrangements in Parliament to exist in those limited cases where the assembly is exercising functions in parts of England. That is why Clause 45(5) of the Bill ensures that when the assembly makes secondary legislation applying to parts of England it will continue to be subject to the usual parliamentary procedures.

Paragraph 6 of the new schedule provides that in relation to assembly functions in an English border area—which may include secondary legislation and matters such as determinations or directions—the transfer order can require that the assembly should consult, or obtain the agreement of, a UK Government Minister before it exercises the function. The transfer order will in due course set out our proposals for the use of this power.

In developing these proposals it has become apparent that there are a limited number of functions which the assembly will exercise in Wales but whose principal effect may be felt in England. That could, in effect, have a serious adverse impact on water resources, water supply or the quality of water in England. Those relate to abstractions from, and discharges into, rivers that cross the border. We have thought carefully about this and decided that, to recognise the interests of people living in England who may be affected by the assembly's decisions in Wales, there should be a limited override power for the Secretary of State to intervene and to take certain decisions in place of the assembly. This is provided for in paragraph 5 of the new schedule. The override power can be applied to functions in parts of two named Acts only. The transfer order will set out our proposals in due course for the precise cases where the override power will be available. This question was pre-figured by the intervention of the noble Lord, Lord Roberts of Conwy.

Paragraph 7 of the new schedule provides that in determining a formula for how much housing revenue account subsidy local authorities in Wales should receive, the transfer order can require the assembly to obtain the agreement of the Secretary of State for Social Security in relation to the rent rebate element of the subsidy formula. That is necessary because housing policy, which will be a matter for the assembly, and social security matters, which will continue to operate on a UK-wide basis, are locked together in a single provision. Making the exercise of these subsidy powers by the assembly subject to agreement will therefore legitimately safeguard UK-wide social security interests.

Section 80 of the Local Government and Housing Act 1989 empowers the Secretary of State to decide the amount of housing revenue account subsidy payable to local authorities. In Wales these powers are currently exercised by the Secretary of State for Wales and in England by the Secretary of State for the Environment, Transport and the Regions. There are different arrangements in Scotland and Northern Ireland.

This subsidy is a deficit subsidy to local authorities' housing revenue accounts which relate to council housing. In setting the subsidy formula, various assumptions are made about each authority's rent and other income to the housing revenue account and expenditure by way of management, maintenance, capital charges and other items. These assumptions are a powerful influence on the average rents set by local authorities and on their expenditure decisions.

The other major component of the subsidy formula is the cost of rent rebated to tenants who cannot afford their rent. Such rebates are a social security benefit. Nothing under Section 80 of the 1989 Act bears directly on an individual's entitlement to social security benefits. The rules of entitlement to benefit remain a matter for the Secretary of State for Social Security and we do not intend to disturb this. However, subsidy rules made under Section 80 can be as important as the rules on benefit entitlement in ensuring that housing benefit is delivered equitably and effectively.

A number of the rules within the subsidy determinations relate to rent rebates. These rules are intended to ensure that local authorities administer rent rebates properly and consistently with other housing benefit. They also ensure that rent rebates are not used to deliver a different level of support through the benefit system or to introduce differences in the social security regime from that which operates elsewhere in the UK.

It is important to maintain these safeguards for the wider social security system under the assembly. The mechanism introduced by this paragraph of the new schedule will allow the Secretary of State for Social Security to be satisfied that these interests have been recognised when the assembly makes its subsidy determinations. They will also ensure that the UK Government will be able to carry through any long-term reforms of the benefits system. The amendment is focused on the rent rebate element of the subsidy. We do not intend that the consent mechanism should be used to prevent the assembly from pursuing its legitimate policy interests in devolved matters such as rent policies or that it should encroach on housing policy more generally. Nor is it the intention to impose complete uniformity in the operation of the rent rebate element of the subsidy formula as between England and Wales. However, we do intend that the Secretary of State should be able to withhold consent where the assembly's actions or omissions risk distorting social security policy or adversely affect the proper management and control of housing benefit. It is agreed that the assembly will fund any increases in rent rebate expenditure which are a consequence of its own policies.

In the longer term, we will consider providing for a separate rent rebate subsidy payable by a UK Minister similar to the current arrangements in Scotland. This will provide for a clear separation of responsibilities between social security matters taken forward on a UK basis and housing policy matters devolved to the assembly. This would remove the need for a consent mechanism.

However, such changes will need to be considered in the context of the Government's comprehensive spending review. This may reach conclusions that would entail amending the relevant provisions of the 1989 Act for both England and Wales. We would want to avoid cutting across the conclusions of that review by making changes to the 1989 Act only in respect of Wales. For that reason we are not making such amendments now.

The government amendments to Clauses 30 and 45 are consequential on the new schedule. They ensure that the assembly's subordinate legislation is subject to parliamentary procedures if it is made jointly with or contains provision made by a Minister; or if it relates to England; or if it relates to the functions or activities of a cross-border body outside Wales. The amendment to Clause 59 ensures that the definition of "Assembly general subordinate legislation" excludes any legislation that is subject to parliamentary procedures. Finally, there are four consequential amendments to the definitions in Clause 156.

I have spoken at length. The changes are substantial. They clarify which functions the assembly may be given in areas of England that adjoin Wales and they provide a range of mechanisms to ensure that the interests of people living in England are adequately protected. They will also ensure that the assembly's decisions on housing revenue account subsidy are consistent with the Government's policy of a common level of benefits across the United Kingdom. I beg to move.

6.30 p.m.

Lord Roberts of Conwy

We are grateful to the Minister for having given us advanced warning of the very extensive changes proposed in the cross-border areas; and very broad they are too, as we have just heard, involving the deletion of Clause 23 and its replacement in effect by a new schedule. The Government clearly took note of points raised in the other place and looked deeper and more closely at cross-border issues. That has resulted in a sharper focus on the functional areas, including rivers, water courses, water supply and drainage. That is certainly an improvement on what was there previously, in particular in Clause 23(6)(c).

I note that the Government intend to retain the provisions in Clause 45(5), which requires that any assembly subordinate legislation applying to English border areas is to be subject to parliamentary procedure and that assembly functions in such areas or in respect of cross-border bodies may be exercised subject to consultation or with the agreement of a Minister of the Crown. Our amendments to Clause 23, as it then stood, Amendments Nos. 80 and 81, were more prescriptive and required the consent of the English Minister rather than consultation. Perhaps the Minister may wish to consider those amendments again. They might help to avoid cross-border problems in years to come.

Am I right in thinking that there is as yet no guarantee that a transfer order would require the assembly to consult with or seek the approval of Ministers before acting in England? If that is the position, these provisions are somewhat inimical to democracy. People in England could be seriously affected by the assembly and yet, because they do not elect representatives to that body, they would have no way of seeking redress. Such arrangements might result in conflict between England and Wales. I should be grateful to the Minister for some assurance and clarification on that point.

We appreciate the fact that the Government have seen fit to include an override power for the Secretary of State to intervene on behalf of those living in England who may be adversely affected by the assembly's decisions. That is a wise precaution. However, it reads oddly to a person like myself living in Wales because the implication is that the assembly can do what it likes with "our water", "our water resources", and so on; we shall just have to endure it; the Secretary of State will not be able to intervene on our behalf.

As the Minister outlined, the new schedule incorporates provisions to ensure that the assembly's exercise of its housing responsibilities in relation to the calculation of the housing revenue account subsidy is subject to the agreement of the Secretary of State. That part of the schedule is very prescriptive. The assembly does not have much choice about accepting the formula. It has to. While all that is perfectly understandable, what worries me is the Minister's admission in his letter that the need for the amendment was identified only recently. It makes one wonder just how many more problematic areas remain to be discovered.

I should be grateful to the Minister for an assurance that English MPs receiving complaints from constituents about actions of the assembly can approach the appropriate Minister in England and that he will then get a response from the executive of the assembly.

The Earl of Balfour

Perhaps I may ask the Minister to look at paragraph 5 of the new schedule. It is a long time since I have been in North Wales but I know that Manchester used to be supplied with most of its water from reservoirs in north Wales. I would imagine that part of the purpose of the amendment is to cover the cross-border functions in that case. Furthermore, although I may have misheard, I am not sure that the Minister made any comment on Amendment No. 196B, which stands in the name of my noble friends Lord Stanley and Lord Courtown.

Lord Williams of Mostyn

I rise simply to help and not to be discourteous. I did say that I would respond at the end when I had heard what the noble Lord, Lord Stanley of Alderley, had said, rather than presuming to answer him before he had said it.

The Earl of Balfour

I am grateful to the Minister. I just wanted to say that I feel that Amendment No. 196B is extremely sensible.

Lord Stanley of Alderley

I think I caused some trouble here because I thought that there was an amendment before mine. However, I have just been informed that there is not.

My amendment is Amendment No. 196B. It is intended to suggest an answer to the position of farmers whose agricultural holdings straddle the border between England and Wales. Giving the assembly power to make regulations which apply in Wales could well result, over a period of time, in those farmers facing two quite different sets of regulations for different parts of their farms. It would clearly be very difficult for the farmer to comply with two sets of regulations. For example, regulations relating to the protection of hedgerows, a matter which is certainly engraved on my heart from the previous Session, could differ as between Wales and England. The hedge in question might well run over the border.

A possible solution to this problem is to give farmers in that position the right to make an election as to which set of agricultural or environmental regulations they wished to apply to their business. That certainly applies to husband and wife under the Income and Corporation Taxes Act 1988. A right to such an election also applies in relation to the IACS scheme for farmers who farm on the border between England and Wales. As with those farmers, it would not be fair for an election, once made, to be binding for ever as conditions may change. They should therefore have the right, as husband and wife do, to make a fresh election after a period of perhaps one or two years. The Government have just considered the position of border area farmers. Does the Minister agree that they might face peculiar difficulties that could result from different legislation and different orders? What do the Government think is an appropriate remedy if mine is too greedy? I want to be in the same position as the Scots. I should like to choose whichever suits me best.

Lord Williams of Mostyn

I shall respond accordingly to Amendments Nos. 80 and 81 and also to Amendment No. 196B, which was spoken to by the noble Lord, Lord Stanley. The effect in practice of Amendments Nos. 80 and 81 would be that any function of the assembly with respect to a cross-border body or cross-border area could be exercised only with the agreement of a Minister of the Crown.

Under Clause 45, any assembly subordinate legislation that applies to English border areas will be subject to parliamentary procedures here in Westminster. The question is whether other executive functions in respect of such areas—of the kind the noble Lord, Lord Roberts of Conwy, had in mind—should be subject to ministerial agreement, given that the assembly will not be elected by or accountable to those who live in England. The answer is that it will depend on the detail of the functions that the assembly will have in English border areas. We have not reached final conclusions about that.

It may be that the difference between us is that we do not believe there should be a blanket requirement for every assembly function in England to be subject to ministerial agreement. There may be some functions where another approach—perhaps a requirement for consultation—would be more appropriate. The drafting of the Bill provides a menu of choices in the transfer order and we believe that that is the best way forward. But it is not always possible to find an immediately acceptable solution to all situations which may arise. If the noble Lord or any other Member of the Committee has any specific suggestions for assembly functions which should be subject to a requirement for ministerial agreement as opposed to consultation, we are more than willing to consider them. The point of detail which the noble Lord, Lord Roberts of Conwy, made about an English person wanting parliamentary redress through his or her Member of Parliament is one of those questions that needs further scrutiny. I am obliged to him for raising it.

We cannot accept that every assembly function should be subject to ministerial agreement. For instance, the Environment Agency is a cross-border body. One effect of the noble Lord's amendment would be that a direction by the assembly to the Environment Agency about its operations in Anglesey or Pembrokeshire would then have to be subject to ministerial agreement. I do not believe that anyone would consider that the proper way forward. That is one example of why I believe that our approach is a commonsense one and that we need to tease out more detail. I repeat that I am more than happy to have any proposals put forward in time for our future discussions.

The noble Lord, Lord Stanley, with his Amendment No. 196B, would allow owners of agricultural holdings—I believe the proper word is "business"—which consist of land on both sides of the border, to opt in and out where such legislation might be different in Wales from that in England. I gave earlier examples of the Moorland (Livestock Extensification) (Wales) Regulations 1995 and the Rural Development Grants (Agriculture) (Wales) Regulations 1996 where that position presently obtains. I take the point made about land rather than the operation of vehicles or livestock.

There are a few cases where a single farm lies physically on the border—apparently, there are not many. But if one looks at the small print of the amendment tabled by the noble Lord, Lord Stanley of Alderley, it refers to, agricultural holdings with land partly in Wales and partly in England and which are run as a single business". That is an extremely ingenious formulation which I shall take a little further. It would be possible for someone who farms in Anglesey, for example, to have a large land holding in East Anglia. He would then be able to opt—the noble Lord has come clean—as often as every three years for the most advantageous financial consequences. I was not born yesterday. I appreciate that the noble Lord is looking for a formula which meets legitimate concerns, but with the dagger of the Chancellor of the Exchequer firmly pointed at my back, I believe that that is going much too far for any reasonable solution.

I believe that it would be what is called "a perverse incentive" to start buying land on the other side of the border in order to cherry pick in that way. It is not entirely dissimilar to the illustrations given by the noble Lord, Lord Molyneaux, in the context of the Republic of Ireland and Northern Ireland. However, it is a fair point that we do not want to burden businesses, whether agricultural or others.

Clause 66 is useful. It provides a very good structural, in-built discipline because it requires the assembly to carry out regulatory appraisals of subordinate legislation so that costs and benefits can be assessed and taken into account. I am not putting on one side the points which the noble Lord made. We believe that businesses, whether agricultural or otherwise, which have land on both sides of the border ought to be able to make their full contribution to those appraisals. That is a useful scheme. I recognise that quite often when legislation is passed problems arise subsequently. The scheme in the Bill is a good one. If it becomes law I hope that it will go a reasonable way towards meeting the noble Lord's points.

The question was raised by the noble Earl, Lord Balfour, as to whether the Secretary of State would be able to intervene to allow a new reservoir to be built in Wales which would serve England. I hope that I have his question correctly. Paragraph 5 of the new schedule would not allow the Secretary of State to intervene for a new reservoir to be built in Wales to serve England. The reason for that is that the compulsory purchase and compulsory works powers which would be needed are in Part VI of the Water Industry Act 1991. The override power cannot be used in relation to any functions in that Act. Obviously, if Parliament wished to enact primary legislation it would be open to Parliament to do so. If the noble Earl has any further particular matters of concern within that general area then, as always, I shall be happy to respond in writing in due course.

The Earl of Balfour

I am much obliged.

On Question, amendment agreed to.

6.45 p.m.

On Question, Whether Clause 22, as amended, shall stand part of the Bill?

Lord Simon of Glaisdale

As has been pointed out, Clause 22 is the crux of the Bill. The first point deals with the transfer of functions. I believe that many Members of the Committee will find it convenient to know what functions are at present exercised by the Secretary of State and which are not being transferred. Perhaps the noble Lord will consider that and see what can be done about it. I believe that I am pressing my luck somewhat. It would be helpful to know what functions performed by other Ministers in relation to Wales are or are not being transferred.

The second point I wish to raise is this. It may be that I understood erroneously from the discussions on the referendum Bill that power was to be transferred over secondary legislation where the primary legislation extends to Wales. There are a number of indications in the Bill that the assembly is to deal with secondary legislation. I refer to Clauses 45, 59 and 67, and I believe that there are a number of others which apply. If the assembly has jurisdiction over all secondary legislation as far as it extends to Wales, I would have expected that to be set out specifically in Clause 22.

Lord Williams of Mostyn

I believe that the first part of the noble and learned Lord's questions were raised by the noble Lord, Lord Dixon-Smith, who said that he would welcome a plain man's guide to the kind of matters to which he referred. I said in answer to the noble Lord that it was an idea with some merit and I promised to look at it. I make the same response in answer to the noble and learned Lord, Lord Simon of Glaisdale, because it seems to me that that kind of clarification, almost by way of a tick list, is likely to be useful. I shall write to the noble and learned Lord on that subject.

On the broader question, if subordinate legislation within the assembly is to have an effect on England, that will be subject to the Westminster parliamentary process. Secondary legislation in respect of Wales is for the assembly. I take the noble and learned Lord's point—he is a constitutional purist—that some reference to that ought to be made in the Bill. I shall reflect on that and write to the noble and learned Lord as soon as I possibly can. It may not be tomorrow or the day after because we shall be engaged in Committee here, but I shall certainly write to him on both matters as soon as I can.

Lord Simon of Glaisdale

I thank the noble Lord on both counts.

Clause 22, as amended, agreed to.

[Amendment No. 67 not moved.]

Schedule 2 [Fields in which functions are to be transferred by first Order in Council]:

Lord Roberts of Conwy moved Amendment No. 68:

Page 81, line 18, leave out ("Agriculture,").

The noble Lord said: Schedule 2 lists the 18 fields in which functions are to be transferred by the first Order in Council. We have that order before us in draft form. We have sought to amend the first field listed, which relates to, Agriculture, forestry, fisheries and food", by removing "agriculture" simply because it was not at all clear to us, or to others, how the Government's responsibilities for agriculture were to be carried out. In a sense, this is therefore a probing amendment.

Shortly before Second Reading, NFU Wales sent a letter to Welsh Peers, signed by its director, Mr. W.J. Goldsworthy, from which I now quote briefly: Although the Government proposes to devolve many operational aspects of agriculture, the Secretary of State has emphasized that important aspects of agriculture will not be devolved, including the vital matter of the reform of the CAP where it is envisaged that the Minister of Agriculture will continue to take the lead. He has stated that there will be representation from the Assembly in the UK delegation to EU negotiations. It is not clear, however, how this arrangement would operate in practice". Those were the words of NFU Wales, as represented to us by Mr. W.J. Goldsworthy, and I am bound to say that I agree very much with the substance of his last sentence because I am not clear about just how that arrangement will work in relation to Brussels.

The noble and learned Lord the Solicitor-General threw some light on the matter in the general context of the United Kingdom's relations with the European Union in his speech at the end of our Second Reading debate. He said: Where appropriate, assembly secretaries, as well as officials, will have a role to play in delegations to the Council of Ministers, as agreed by the UK Minister leading those negotiations". As well as referring to taking part in relevant negotiations on policy at the Council of Ministers", the noble and learned Lord said that Assembly secretaries will be able, subject to the agreement of the lead UK Minister, to speak on behalf of the UK in relevant negotiations in Brussels".—[Official Report, 21/4/98; col. 1130.]

That all sounded fine at the time—until we began to consider the practical realities. Agricultural issues that affect only Wales are practically non-existent. So, the reality of assembly participation in European Union affairs is likely to be very different from the theoretical promise made by the noble and learned Lord the Solicitor-General whom I am glad to see in his place.

There are very difficult years ahead for British farming, years of tricky negotiations in Brussels over Agenda 2000 and on the future of agriculture. Wales at the moment has a much weakened industry, which had its income almost halved last year compared with the year before. There is deep concern, which has been echoed in this Chamber, not only about the future of farming as such, but about the impact of its decline on rural communities. That concern has been expressed repeatedly by my noble friends, and in particular by my noble friend Lord Stanley of Alderley.

As Mr. Goldsworthy said in his letter to us: Just before the referendum last September ministers assured farmers that a Welsh Assembly will benefit rural communities". The NFU welcomed that pledge, but a lack of clarity persists about how that benefit is to be achieved and about what devolution will mean in practice for farming.

Perhaps I may quote Mr. Goldsworthy's letter just once more: It appears that some decisions on devolving agriculture have yet to be taken, notably on food safety and animal health matters". We heard about that earlier. Mr. Goldsworthy continues: Whilst the Scottish Parliament will have the power to enact its own food safety legislation which may lead to different laws north of the border, does the Government envisage different secondary legislation on these important matters as between England and Wales, or identical regimes? I think that we have had the answer to that question, but there still remains the issue of how the subject of agriculture will be dealt with by the assembly.

The NFU has raised a number of other pertinent issues, but they are more closely related to other clauses to which we shall come in due course. In this discussion, I believe that the Committee would like to hear a fairly detailed account of how it is proposed to deal with agriculture under the scheme of devolution proposed, bearing in mind its current parlous state and the momentous changes proposed at European Union level.

I have also tabled Amendments Nos. 77, 78 and 79, relating to Clause 23 which I understand the Government are to withdraw in its entirety. Therefore, I do not see much point in speaking to those amendments. I beg to move Amendment No. 68.

7 p.m.

Lord Elis-Thomas

I am grateful to the noble Lord, Lord Roberts, for moving this amendment and for referring particularly to agriculture, to which I shall come in a moment. Grouped with Amendment No. 68 are Amendments Nos. 69, 70, 72 and 73 to 76 which stand in my name. I am pleased to have next to me my noble friend and fellow former party leader on the Cross Benches, the noble Lord, Lord Molyneaux, who can be entrusted to speak to my amendment, Amendment No. 70, on British-lrish issues as they relate to the assembly.

I want to introduce this series of amendments by emphasising what I take to be the object of Schedule 2, which is to name—quite literally—the fields in which functions are to be transferred. In earlier debates, the question of "fields" was given almost a literal definition. I understand that this schedule indicates areas rather than specific functions. It is therefore not surprising that there is not absolute clarity.

During the latter part of the Recess, I read with fascination the transfer order and marvelled at the work of the officials who have combed through all the pieces of legislation relevant to the current functions of the Welsh Office. On that basis, I believe that even potential Welsh assembly members might benefit from a lay-Welshperson's guide to the current functions of the Welsh Office and to what might be the assembly's forthcoming functions. It seems to me that the assembly may spend quite some time trying to find out just what it is able to do and what its competences are in a whole series of policy areas. That is why I have tabled a series of amendments on other fields which are not currently listed.

I believe that an ideal case for transfer is consumer protection. That is an area which is generally administered by local authorities within Wales. In any event, most consumer protection legislation falls within the framework of European legislation. When the Front Bench opposite waxed eloquently about legal conflicts or disagreements between the United Kingdom and the national assembly in Cardiff it occurred to me that it had forgotten that whole areas of domestic policy, particularly in the environmental, public health and consumer protection fields and a host of other matters, already fall within European Union regulation. These areas are subject to directives and legal instruments of the European Union to which the United Kingdom Government and the national assembly must pay equal regard. I believe that consumer protection would be a subject for transfer, and I should like to hear from the Minister why it does not appear in the first draft transfer order.

I turn now to my favourite subject of railways. The particular evidence that I produce is my Rail Rover valid until 10th June and issued at Bangor, Gwynedd. It allows me to travel the length and breadth of Wales. As Members of the Committee are aware, to travel the length and breadth of Wales one must go along the beautiful Marches. One is continually reminded that the borders of Wales have been open for a thousand years. In my view there was no reason to tear up the north-south communication on the west coast either. I believe that if any subject is appropriate for joint action between the national assembly and a Minister of the Crown in England it is the railway network. I shall not spend time, although I could, on the quality of the west coast track or the North Wales connection to Holyhead, at any rate not this evening. Noble Lords should not tempt me. I wish, however, to register one protest about the failure to include railways in the transfer order; similarly, inland waterways, as referred to in my Amendment No. 72. These, like other watercourses, traverse the border. I refer to the beautiful Llangollen Canal and so on. These are very appropriate subjects for immediate transfer.

The police, prisons and probation service are referred to in Amendment No. 73. This is even more probing. I shall not speak about the particular difficulties of Parc. I know that the Minister has those Home Office interests very much at heart. But the administration of the probation service and the police service in Wales appears to be a suitable candidate for effective transfer. Those services are already administered at a Wales level.

In case the noble Lord, Lord Stanley of Alderley, believes that I was a little rough with him earlier in relation to his amendment dealing with override powers, I totally support his Amendments Nos. 74 and 75 on rural affairs and rural regeneration. I link them with my amendment dealing with sustainable development. That should permeate the whole of the assembly's work. We shall come to that matter in greater detail later. It is important to flag up that we view sustainable development as a subject area in its own right and not as an add-on.

How does the Minister see the assembly progressing requests for further fields of transfer? I believe that there is a case for the assembly having an input into its own specific powers. It may be able to request further transfers to be considered by government by order according to Clause 22, and particularly Schedule 2.

I express disagreement with what I perceive to be the arguments underlying Amendment No. 71. Speaking as a member of the Standing Committee which considered the Environmental Protection Act 1990, I believe that the arrangements arrived at between the conservation agencies in England, Scotland and Wales have worked well. I am disappointed that this subject should be reopened. No doubt the CCW has a view on this matter. I look forward to the Minister informing the Committee of that view. I believe that the Countryside Council has worked admirably as a countryside agency combining habitat concerns and national park and access issues. Of course, it will be accountable to the assembly but it is also a partner in the UK-European wide statutory conservation family. I do not want to see anything done to weaken that partnership. The JNCC is a body in the ownership of the various countryside agencies. I believe that that arrangement should remain under the assembly.

As to the agricultural issues raised so clearly by the noble Lord, Lord Roberts of Conwy, it is essential that the assembly has an input into the debate on the future of the CAP. I fail to understand why the noble Lord, who lives in the most attractive valley in Wales, Conwy, and in sight of the most striking mountain range in Wales, seeks to argue that somehow there are issues of Welsh agriculture that are separate from UK agriculture or European agriculture. Surely, the Welsh assembly will be able to scrutinise all potential changes in Agenda 2000 and express a view. That view will be part of the overall UK position as it will be part of the inter-regional debate within Europe concerning mountain regions. Does the noble Lord believe that I am answering for the Government? I seek to help him. These matters should not be subject to division between us. Agricultural policy is borderless. For those reasons it is essential that there should be an input from mountain regions such as Wales into the whole European debate on the CAP. The assembly can provide that directly in a way that is complementary to anything that may be said at UK level. I am pleased to see that agriculture is to be transferred as a subject. I am certain that relationships can be worked out to ensure that the assembly has a strong voice to represent the NFU, the FUW, CLA and all the other agricultural bodies in Wales.

Lord Moran

I should like to say a few words about Amendment No. 71 which stands in my name and those of my noble friend Lord Chorley, the noble Baroness, Lady Nicol, and my noble and gallant friend Lord Carver. Essentially, it is a probing amendment. We are anxious that there should continue to be in the United Kingdom a common approach to nature conservation. It would be helpful to hear from the Minister precisely how that will be achieved under the Bill. We should also like to be reassured that the present arrangements, worked out with such care eight years ago, cannot be upset without the full consent of Parliament.

Nine years ago we began considering in this House the implications of the previous government's decision, announced on 11th July 1989, to break up the Nature Conservancy Council into three autonomous country agencies. Four months later the government, in the face of strong criticism at the apparent lack of thought given to the scientific base of nature conservation, announced that these bodies would be required to form a joint committee to provide advice about nature conservation with a Great Britain or international dimension and to establish common standards on these matters.

The Environmental Protection Bill had started its progress through Parliament. The Select Committee on Science and Technology established a sub-committee to look into this matter. Its chairman was my noble and gallant friend Lord Carver who has put his name to this amendment but who, unfortunately, cannot be here tonight as he has to be in Strasbourg. The noble Baroness, Lady Nicol, and I were members of that sub-committee. I was co-opted as someone who lived in Wales. The Carver Committee reported in March 1990. I wish to quote three brief sections from the sub-committee's opinion. First, in paragraph 3.5 we said: Nature conservation needs one scientific base. The Committee reject arguments that the United Kingdom can be split ecologically into separate parts for England, Scotland and Wales. The evidence clearly supports the view that the United Kingdom is a biogeographical continuum … Although there are obvious differences between parts of the British Isles and a few unique characteristics of the north and south, these differences are less significant than the common factors. Most habitats, most flora and fauna and most geological features are to be found in more than one country of the British Isles, or in the sea which surrounds them all. Moreover there is only one science underlying nature conservation". In paragraph 3.17 we said that, it would be very damaging if, in improving the Scottish, Welsh and English perspectives on nature conservation, the broader United Kingdom perspective were lost. Witnesses repeatedly demonstrated that a narrower, more localised, perspective can distort how the overall interests of nature conservation are perceived, especially in the perpetual tussle between conservation and development". Finally, in two key recommendations we made in our summary of conclusions we said, first, in paragraph 4.4.: Devolution must not become disintegration. The new structure must be scientifically effective at home and internationally. A broad United Kingdom perspective must be preserved. The United Kingdom's commitment to nature conservation must be unimpaired". In paragraph 4.5 we stated: The Joint Committee should be the means through which the country councils work together and it should be strong enough to drive forward the cause of nature conservation at a national level". We set out in our report how we thought that the joint committee should operate and advised on its functions, membership and staffing. Most of our recommendations were accepted and were reflected in Section 7 of the Environmental Protection Act which received Royal Assent on 1st November 1990.

The special functions of the country agencies discharge through the JNCC and defined in Section 137 of the Environmental Protection Act are: the quinquennial review of the schedules of specially protected plants and animals other than birds; advice to Ministers on policies for or affecting nature conservation in Great Britain or elsewhere; dissemination of information to any person about nature conservation in Great Britain or elsewhere; the establishment of common standards throughout Great Britain for the monitoring of nature conservation for research into nature conservation, and the analysis of resulting information; and the undertaking or commissioning of research to support the above function.

The JNCC was established in 1991. It has worked well, indeed better than was expected, under the distinguished and skilful chairmanship of the noble Earl, Lord Selborne, whom I am glad to see in his place, and its present chairman Sir Angus Stirling. It is supported by the chairmen of the three constituent councils which of course are now English Nature, Scottish Natural Heritage, and the Countryside Council for Wales.

One provision of the Environmental Protection Act (Section 131(5)) is that the Secretary of State is able to give the JNCC directions of a general or specific character with regard to the discharge of the committee's main functions. That is an important provision, although intended as a last resort, as it ensures that the JNCC duly carries out its functions in the way, and for the purpose, that the Act intended.

The present Bill has the potential to change matters in relation to the conduct of nature conservation by the JNCC. Clause 22 provides for the transfer to the national assembly for Wales of any of the functions exercisable by a Minister of the Crown in relation to Wales. The effect of such a transfer, were it to relate to the Secretary of State's powers of direction to the JNCC, could undermine the committee's role in giving advice in relation to nature conservation in Great Britain as a whole or internationally, or for the setting of common standards for research or monitoring or for the handling of the resultant information. In short, it could begin the unravelling of the procedure which this House was so instrumental in establishing in 1990—a procedure which was established with great thought and care. It is difficult to see how such a power of direction, if applied to the JNCC, would not impact on Great Britain as a whole and not just Wales. At the very least, it could create distortions and difficulties with which it would be difficult to work.

The purpose of the amendment is to safeguard the future operation of nature conservation in the UK at the national and international level, by exempting the functions carried out by Ministers of the Crown, in relation to the work of the JNCC, from the possibility of transfer to the assembly.

I recognise that that may be a theoretical risk only. In the seven years of the JNCC's existence, the Secretary of State has not used the power given to him in Section 131(5) of the Environmental Protection Act. We want to know how the present arrangements can be preserved and secured under devolution. I am, incidentally, puzzled about the interaction of Clauses 22 and 23. Clause 22 provides for an Order in Council to direct a Crown Minister to exercise his functions in relation to Wales to be exercisable concurrently by the assembly, or exercisable subject to the consent or approval of, or after consultation with, the assembly.

Clause 23(6)(c) provides that any function exercisable by a Minister of the Crown in relation to a cross-border area—that is, an area which includes a part of but not the whole of England as well as the whole or a part of Wales, shall be regarded for the purposes of Clause 22 as exercisable by the Minister in relation to Wales. It appears that the scope of Clause 22 is not confined to the matters listed in Clause 23(6), which means that any function of a Crown Minister in relation to Wales could be transferred to the assembly.

If the words "in relation to Wales" were to be defined by the matters listed in Clause 23(6) then the functions of the Minister as regards the JNCC could be implicated by reason that some of the JNCC's functions—for example, advice to Ministers—could relate to only part of England as well as Wales, and therefore come within the definition of a "cross-border area". The JNCC's functions relate also to the sea both within and outside territorial limits, and that is included by Clause 23(6)(b).

I should be grateful for clarification by the Minister of the way in which those clauses are intended to work. I have given him notice that I would ask about this matter.

7.15 p.m.

Lord Molyneaux of Killead

I am happy to support my noble friend Lord Elis-Thomas, especially in his plea for the devolution to the new assembly in Wales of all those matters which quite properly would appear to the general public to come within its area of responsibility, because if that is not done, and certain vital powers affecting Wales only are withheld from the assembly, the general public, if they are anything like the general public of Northern Ireland—Northern Ireland testified recently to this—will blame their own elected representatives for the sins of commission or omission by the sovereign Parliament.

My noble friend has a strong case in advocating that where it is safe within the integrity of the UK to devolve to the new assembly in Wales all those matters which are, after all, of real concern to the people who will elect the new assembly, even if that assembly is going to have only about half the membership of the Northern Ireland assembly, given that its population is probably more than twice ours in Northern Ireland, it should do so.

I have no option but to support Amendment No. 70. My authority for so doing is to be found in what has become known as the Belfast Agreement, which we are now told has the status of the law of the Medes and the Persians—unalterable and all the rest of it. The precise reference is to be found under strand three of that document. Paragraph 2 provides for membership of the council of the isles for devolved institutions in Northern Ireland, in Scotland, in Wales, and, if appropriate, I suppose, in London. One can hardly imagine that London would leave the UK, but one never knows in these days of rapid change and mass hysteria what lies ahead of us. We should not forget the Isle of Man and the Channel Islands, and, I suppose, if Atlantis were to resurface that might come into it too.

Amendment No. 70 is, in a way, a necessary act of reciprocity, because without it there could be an element of doubt in the minds of the 71 per cent. of the Northern Ireland electorate who voted recently, as to whether the people of Wales really wished to be associated with the people of Ireland. We have the opportunity tonight to provide that reassurance.

Lord Stanley of Alderley

Amendments Nos. 74 and 75 are grouped with the amendment. Before I speak to the amendment, perhaps I may emphasise the importance of the point made by the noble Lord, Lord Roberts, about the relationship between the assembly and Brussels. I shall study all the Minister's replies on this subject before Report stage, in particular the relationship between the assembly and Brussels to which I referred when I introduced my first amendment today.

Farmers need clarity on this vital matter. We cannot wait and see. I have to say this to the noble Lord, Lord Elis-Thomas. His simple and hopeful view that the assembly will find it easy to deal with Brussels may not prove to be quite correct. However, I can assure the noble Lord that a later amendment is intended to tackle the problem of geography, and the railways on the north coast of Wales.

I shall be most interested to hear the Minister's reply to the amendment of the noble Lord, Lord Moran. I remind the noble Lord, Lord Elis-Thomas, that it was the noble Lord, Lord Moran, who made the statement, not me.

Amendments Nos. 74 and 75 enable the Secretary of State to transfer to the assembly his functions over rural affairs and rural regeneration. It is important that that is done. The assembly will then be able to ensure that subject committees have responsibilities in those two fields; some may regard them as the same field. I shall be interested to hear the Government's view. I hope that the Minister will be able to assure me that rural affairs and rural regeneration will have a statutory place on the subject committees.

Baroness Nicol

I support Amendment No. 71 on which the noble Lord, Lord Moran, spoke so well. The noble Lord, Lord Elis-Thomas, is right. The arrangement with the Countryside Council for Wales has worked extremely well. It is to ensure that that happy arrangement can continue that we have put down Amendment No. 71. In the overall picture which is being painted of devolution, we are nervous that the needs of the Joint Nature Conservation Committee may be overlooked. We seek reassurance from the Minister.

The need for that committee is as great now as it was in 1991. I hope that my noble friend will take seriously the points made by the noble Lord, Lord Moran, in particular as regards the responsibilities of the Joint Nature Conservation Committee in advising Ministers on policies relating to nature conservation in Great Britain as a whole and internationally, and, perhaps most importantly, in establishing common standards for research, monitoring, data collection and analysis. Those matters must be dealt with. I hope that my noble friend will provide some answers.

Lord Prys-Davies

In support of Amendment No. 68, the noble Lord, Lord Roberts, drew heavily on a letter from the NFU Wales. I have a letter. My letter is dated 15th April; I am not sure whether we are referring to the same letter. However, in that letter I see no argument for omitting agriculture from Schedule 2. The NFU asks a number of questions, some of which are awkward. When the Minister replies, I shall be grateful if he will confirm that there is no reason why the assembly secretary cannot be a member of the UK representation at the Council of Ministers, and, although a member of the assembly, speak as a representative of the UK with the agreement of the lead department.

No reference has been made to the Farmers' Union of Wales. It is an important agricultural union in Wales. In its letter of 6th May it tells me that it would be "strongly opposed" to a move omitting agriculture from the Bill. That point should be on the record.

I wish briefly to refer to Amendment No. 70, tabled by the noble Lord, Lord Elis-Thomas. I believe that there is a positive case for ensuring that the Welsh assembly will have a representative on the Council of the Isles whenever that is established. There are three reasons why that is important. First, the council will be a permanent forum to discuss matters affecting the British Isles as a whole, and various parts of the British Isles. Secondly, it should provide a link between the two assemblies and the two, and possibly three, parliaments. That will be valuable. Thirdly, it would facilitate the co-ordination of policies where co-ordination is considered appropriate. That is a positive argument on why the assembly should have representation on the Council of the Isles.

The Earl of Selborne

I support the noble Lord, Lord Moran, on Amendment No. 71. I should like to put on record how enormously supportive of the concept of a joint committee was not only the Countryside Council for Wales but also the Welsh Office during the five years that I was chairman of the Joint Nature Conservation Committee. The noble Lord, Lord Moran, was a member of the Select Committee on Science and Technology, as was the noble Baroness, Lady Nicol. It was instrumental in drawing attention to what would have been a serious gap in the legislation. It was only through the intervention of that committee that the joint committee came on to the statute book. It is appropriate to have this probing amendment which ensures that a system which has worked well continues under the legislation we are considering today.

Lord Chorley

I wish to speak to Amendment No. 71 in the name of the noble Lord, Lord Moran. I am happy to follow the noble Earl, Lord Selborne, who had such a distinguished chairmanship of the JNCC. He really made it work.

We have been told many times today that in a Bill as complicated and far reaching as this we have to take many factors on trust. One is happy to do that, but at Committee stage of the Bill it is fair to probe exactly what is meant and what can happen. That is what the noble Lord's amendment seeks to do. There is little I need to add to what the noble Lord, Lord Moran, the noble Baroness, Lady Nicol, and the noble Earl, Lord Selborne, said. The crucial issues relate to those areas where nature does not recognise boundaries. It has been said that although normally inhabiting Wales, the red kite does not recognise the Welsh border. Therefore when we seek to establish common standards we need to have a UK-wide framework. That is the rationale of the JNCC.

While the Bill is probably acceptable, it would be helpful to have a more knowledgeable and positive assurance from the Minister when he replies. It is to be hoped that that will settle the matter for the next 15 years.

Lord Geraint

I have lived on the land all my life and have been dependent on the agricultural industry. I have spoken to many young farmers during the past three or four months. The majority are in favour of the Welsh assembly discussing agriculture among other issues relevant to the people of Wales. I congratulate the Government for allowing debates on agriculture, forestry, fisheries and food in our parliament. I am delighted that the Government have conceded the requests of the young farmers living in rural Wales.

7.30 p.m.

The Earl of Balfour

I wish to make a special appeal in respect of rural affairs and farming. I am sure that my noble friend Lord Stanley will correct me if I am wrong, but the hill farmers—what is regarded within the CAP as the less favoured areas—are having a very difficult time. I am a farmer, but I am not in that bracket.

Secondly, I am surprised that Schedule 2 makes no mention of employment. Employment represents some of the difficulties that we are facing and if the Welsh assembly could take part of that on board it would be good for the country.

Lord Mackay of Ardbrecknish

Perhaps I may comment on the amendments which my noble friend Lord Roberts of Conwy did not speak to and give a view on each in turn. I begin with Amendment No. 71, which was spoken to and explained perfectly by the noble Lord, Lord Moran. The Minister should remove from his mind the idea he can resist the noble Earl, Lord Selby, the noble Baroness, Lady Nicol, and the noble Lord, Lord Moran, any better than could the Government in 1990 in relation to the Environmental Protection Act. The noble Lord made a formidable case, backed by his two formidable noble friends. I, too, look forward to what the Minister has to say. I shall look carefully for the read across to the Scotland Bill, which is soon to appear before us, to see whether environmental aspects regarding Scotland are being dealt with as I believe they should be.

As regards the amendment tabled by the noble Lord, Lord Elis-Thomas, I am not convinced about consumer protection. I accept his point that much consumer protection is EU-wide, but not all. Therefore, it is important to keep some of these issues on an all-UK basis. In the unified market of the United Kingdom, let alone that of Europe, it would be wrong to have the potential of running two different systems. I understand that Schedule 5, paragraph 6, to the Scotland Bill makes it clear that such powers are reserved to the United Kingdom Parliament. If the Minister is unable to confirm that, no doubt he will write to me if I am wrong.

I believe that railways and inland waterways criss-cross the border, and I do not believe that their separation is sensible. The assembly, like the Scottish parliament, will be able to debate whatever it wishes and no doubt communicate with the Government here when it is concerned about such issues. However, ministerial responsibility should rest in a unified way with the Westminster Government. I suppose that in that I am agreeing with the Government's position as regards this legislation. I would also include prisons, the police and the Probation Service, although the noble Lord, Lord Williams of Mostyn, having the Home Office brief on these issues, will be able to answer those questions much better than I can.

This Parliament will have the primary legislative powers on legal matters—the civil law and the criminal law—and therefore it is sensible that the police, prisons and the Probation Service should remain here. The Scottish position is quite different because all primary legislative powers will be devolved to the Scottish parliament.

I turn to the amendment tabled by my noble friend Lord Roberts of Conwy. Given that agriculture and forestry are to be devolved, I can see little objection to the amendments proposed. However, together with my noble friend, I have considerable reservations about devolving agriculture. I agree with noble Lords who said that it is important that agriculture should be the concern of the assembly. I fully appreciate that, but I worry about the EU aspect. I shall not develop that argument now because there will be a chance to do so later.

The world is a place where the guy with the Gatling gun controls things, and as regards agriculture, the guy with the Gatling gun will be in this Parliament. He will go to Brussels and conduct the negotiations. I believe that we are doing agriculture and fisheries a disservice in Scotland, Wales and possibly Northern Ireland if we attempt to separate them out in such a way that the Minister who negotiates and makes the decisions will not carry the can in the other place for the decisions he makes about Wales, Scotland and Northern Ireland. I have considerable difficulty with those issues, but they are not the subject of my discussion.

As the lawyers say, without prejudice to that position—if that is not what the lawyers say, no doubt they will tell me—I cannot see why, if agriculture and fisheries are devolved, rural affairs, rural regeneration and sustainable development, mentioned by the noble Lord, cannot also be devolved. There is an inconsistency about devolving some things and not devolving others which we shall come across quite a lot. I would rather we addressed agriculture and fisheries in a different way, but if we are to go down the road the Government suggest I can see no reason for them to resist my noble friend's amendment or those of the noble Lord, Lord Elis-Thomas. I shall deal with forestry in later amendments.

I have left the amendment about the Council for the Isles until last because it raises an entirely new and different point for us all. I understand that the council will encompass the UK—I presume in its capacity as the government of England, although I am not sure—the Republic of Ireland, Ulster, Scotland, the Isle of Man, Jersey, Guernsey and Wales. I put Wales last because we are discussing Wales tonight. The interesting point is that all of them are different.

The Minister's department speaks for Jersey, Guernsey and the Isle of Man, which do not carry a devolved responsibility. I have recently returned from Guernsey, so I know that it is not devolved in the way that Scotland, Wales and Northern Ireland are to be devolved. The responsibility of the United Kingdom Government is external affairs and defence, not the internal arrangements of those countries. They are not devolved in the way in which we are looking at Ulster, Scotland and Wales; they fall somehow between the devolved position and the totally independent position of the Republic of Ireland.

I presume that the Welsh assembly will be sending a delegate or a delegation to that council, together with delegations or delegates from Guernsey, Jersey, the Isle of Man, Scotland, Northern Ireland and the UK. I presume that there will be English representatives from the UK. If that is the case, matters regarding the Council of the Isles as far as Wales is concerned should be delegated to the Welsh assembly. It would be totally illogical if they were not. If it is to be a proper Council of the Isles, with all those governments, despite their different constitutional arrangements, being represented on it, then the government of Wales—I prefer to think of them as that—should be able to attend with their own delegation from the assembly, taking their own line. Therefore, I am sure that the amendment tabled by the noble Lord, Lord Elis-Thomas, is right. I look forward to hearing a description of what the Council of the Isles will do. No doubt that will interest the noble Lord, Lord Molyneaux, just as much as it will interest me.

Lord Williams of Mostyn

We have discussed Amendments Nos. 68 to 76. The noble Lord, Lord Roberts of Conwy, made it plain that he would not be moving Amendments Nos. 77 to 79 because events have overtaken them. Therefore, the issue essentially relates to the functions which are to be transferred to the assembly.

The first group of amendments seeks by amending Schedule 2, to add to or to subtract from the functions which will transfer to the assembly. Perhaps I may indicate my understanding of what Schedule 2 does and does not do.

Clause 22(2) puts a duty on the Secretary of State for Wales to consider including in the initial transfer order appropriate functions which fall in each of the fields listed in Schedule 2. Without such a provision there would be nothing in the Bill to indicate the extent of the initial powers to be transferred to the assembly. Clause 22(2) and Schedule 2, taken together, reflect the policy that virtually all the functions now exercised by the Secretary of State for Wales should be included in the initial transfer order.

Therefore, adding new fields to the list in Schedule 2 would have the effect of requiring the Secretary of State to consider transferring functions in those other fields to the assembly. It would not require him to transfer any or all of them. If the additions were simply matters included in one of the broad fields already in Schedule 2, the amendment would have no effect at all. Conversely, removing a field from Schedule 2 does not mean that the transfer order under Clause 22 could not transfer functions in that field to the assembly. Schedule 2 does not constrain the ability of an order to transfer any ministerial function.

When introducing Amendment No. 68, the noble Lord, Lord Conwy, whose approach was echoed by the noble Lord, Lord Mackay of Ardbrecknish, proposed that the assembly should not have functions with respect to agriculture. We take a diametrically opposite view in that respect. I am bound to say that our view is that which was elucidated by the noble Lords, Lord Geraint and Lord Elis-Thomas.

As I indicated, Schedule 2 does not constrain the scope of a transfer order. Therefore, if the objective of Amendment No. 68 is to prevent the assembly having functions vis-à-vis agriculture, it will fail. We do not fundamentally understand why an assembly should not have devolved powers on agriculture in a country such as Wales where it is so important. Indeed, the noble Lord said that farmers are faced with difficult circumstances and that farm incomes have very seriously decreased. However, quite apart from that, it is economically and socially important right across Wales; and, indeed, culturally and linguistically. We believe that it is absolutely right that functions with respect to agricultural policy should, as far as possible, be subject to the democratic scrutiny and accountability of the assembly.

If we had an assembly without devolved powers on agriculture, I believe that that would simply hobble the assembly before it starts its work. I would anticipate—although these are matters for the assembly—that one of the very first tasks that assembly members will consider will be the setting out of a strategy for the next few years as regards agricultural policy within its own competence, domestically, in Wales.

When we devolve powers to the assembly, we do not wish to take away from it at or about its birth functions of such importance. The noble Earl, Lord Balfour, asked about employment. Employment, in the sense of the functions of the Employment Service, is not a function of the Secretary of State for Wales. But, of course, economic development is referred to in Schedule 2.

My noble friend Lord Prys-Davies inquired as to whether an assembly secretary could speak at European Council meetings. He is right to suppose that he or she could do so; any assembly secretary could speak at such a meeting and put forward what view had been agreed.

There were also specific questions about—

Lord Mackay of Ardbrecknish

I thank the Minister for giving way. Although this is perhaps not the time to mention it because we will deal with such matters later, I believe that the Minister will have to try to persuade some of us who have been to such meetings on many occasions—for example, on agriculture and fishing—that, at any time, anyone other than Ministers of member states sits round the table and leads in discussions for their country.

7.45 p.m.

Lord Williams of Mostyn

My noble friend Lord Prys-Davies asked whether or not it would be possible for an assembly secretary to speak at a European Union council. I believe that my answer was accurate. It would indeed be possible for him or her so to speak and attend such meetings.

There were specific questions about how the assembly is to organise itself, especially as regards agriculture. They are primarily decisions for the assembly to make. I cannot repeat too often that we do not wish to be prescriptive and dictatorial. We are trusting the assembly with new powers; we are trusting the electorate with their decisions; and it is for the assembly to develop organically through its standing orders and procedures and decide how it wants to carry out its business and how it wants to set its priorities.

The noble Lord, Lord Elis-Thomas, asked a particular question about how requests for further transfers of functions will be dealt with. It is open to the assembly at any time to make representations on any matter. I am happy to confirm that it could make requests for further transfers of functions. Of course, it would then be for the Government and Parliament of the day to decide how to respond to those requests.

There were many distinct questions about Europe. However, I believe that the noble Lord, Lord Mackay, is right to suggest that we probably ought to deal with such matters when we come to discuss Amendments Nos. 102, 103B and 103C.

The noble Lord, Lord Moran, and other noble Lords spent justifiable time on their concerns about Amendment No. 71, which refers to the "special functions" of the three nature conservancy councils discharged through the Joint Nature Conservation Committee (JNCC). The second draft of the transfer order indicates that we propose to transfer to the assembly the Secretary of State's power under Section 133 of the Environmental Protection Act 1990 to direct the Countryside Council for Wales to undertake those special functions in place of the JNCC. That is a reserve power in that the JNCC will continue to discharge its present range of functions unless or until the power of direction is used. Within the Department for the Environment, Transport and the Regions, the Secretary of State will retain the power of direction in respect of the Nature Conservancy Council for England and the Scottish Executive will inherit the power so far as it relates to the Nature Conservancy Council for Scotland.

We are discussing important questions. I have been able to see that the CCW has been in correspondence with the noble Lord who substantially took the burden of this area of the debate. Its view is that it would prefer responsibility for CCW to go to the national assembly. The CCW has come to that view after some thought because its letter is only dated with yesterday's date. The CCW makes the point, which I shall repeat for what it is worth, that the Secretary of State will be left without any expertise in this area and that, it will be far better for the national assembly also to have responsibility for the special functions and to share in an ongoing commitment to a common approach to nature conservation. Indeed, if the two special functions arc left with the Secretary of State this could reduce the sense of ongoing commitment on the part of the assembly who will give us in CCW our direction, budget and much else in the future". I recognise the concerns that were so moderately put by the noble Lord and those who supported him. However, we believe that a good deal of the answer is to be found in the conclusion of the CCW as expressed in its letter.

There may have been a glitch about the prior notice that the noble Lord gave me. He said that he had written to me—and, of course, I accept that—about the duality that he detected as regards Clause 22 and the other clause—

Lord Moran

I am sorry to interrupt the Minister, but I should point out that I did not say that I wrote to him; indeed, I telephoned the Minister's private secretary.

Lord Williams of Mostyn

That is, perhaps, the answer. I have been trying to research a letter. The noble Lord is quite right. However, he did not say that he had telephoned. I regret to say that even my private office is being less than wholly perfect. As far as I am aware, that message did not come to me. Nevertheless, I shall research the matter overnight and hope to have an answer for the noble Lord by tomorrow. I have in fact been asking my officials to find a letter and have been met by indignant denials that any such letter was received. I am most grateful to the noble Lord for resolving the matter.

The amendments tabled in the name of the noble Lord, Lord Elis-Thomas, and the noble Lord, Lord Stanley, seek to add fields to Schedule 2. I have simply explained that, if such amendments were accepted, it would not mean that functions in those fields were obliged to be transferred. Reference was also made to consumer protection. The Secretary of State for Wales does not deal with trading standards or other aspects of consumer protection. Our scheme has been that it is powers which he has presently which are to be devolved to the assembly.

The noble Lord, Lord Mackay of Ardbrecknish, was right: taking the police, prisons and the Probation Service away from the Home Office, which deals with them so admirably, is not on the menu. We have no plans to change Home Office responsibilities in that area.

Amendment No. 70 refers to the Council of the Isles. I think that the nomenclature now has become the British-Irish Council. It is a dramatic idea and it offers the possibility of a consultative forum between different areas within the islands of Britain. I think that in principle it is a most attractive idea if it can be made to work.

Whether the national assembly wishes to take part in it and make it work is a matter for the assembly, as it will be a matter for the Manx legislature and the legislatures in Guernsey and Jersey. I returned from the Isle of Man yesterday where I discussed this among other issues. I visited Jersey and Guernsey a few days earlier. It is not appropriate to discuss legislation on the British-Irish Council in terms of this Bill. However, it appears to be appropriate to discuss virtually everything else in the discovered world in terms of it. If there is to be such legislation it ought to be discussed when that legislation is brought forward.

Amendment No. 72 refers to railways and inland waterways. The main statutory function that the Secretary of State exercises in relation to rail transport and inland waterways is in respect of freight facilities grants under Sections 139 and 140 of the Railways Act 1993. Those grants encourage the transfer of freight from road to either rail or inland waterways. These functions are more than adequately covered by the field of transport in Schedule 2. The only other functions that the Secretary of State has with respect to railways are incidental ones; for example on planning and non-domestic rating. The principal functions relating to the railways are within the remit of the Secretary of State for the Environment, Transport and the Regions. These should allow the railways to operate as an integrated network within a clear financing and regulatory regime set by him. The Government have no plans to alter that.

Those are the responses to the matters which have been raised. As I said, I have specifically not discussed those matters which were not raised because of our earlier decision with regard to Clause 23.

Lord Elis-Thomas

I express my disappointment at the decision not to transfer immediately all responsibility for railways. There are aspects of passenger transport as well as freight transport which will be of interest to the assembly and we shall want to return to the matter. I wish to respond positively to what the Minister said with regard to the Council of the Isles. I thank him for his remarks. I am certain the assembly will want to address that issue. It may not be appropriate to do so in this schedule but at some point during the Bill we may wish to return to the question of the relationship between Northern Ireland and the national assembly for Wales. Both assemblies will have much in common in terms of their functions.

As regards the arrangements for the JNCC and the views of CCW, I welcome what the Minister said. My concern with the probing amendment is that it might undermine the active role of the assembly, and in particular the role of the assembly secretary with responsibility for the environment and his officials who will take over the Welsh Office brief, as it were. It would be a mistake to leave with the Secretary of State some reserve powers in one area. I refer to the active environmental commitment which will have to be part of an assembly whose brief will be to promote sustainable development. I cannot believe that an assembly which will have such a duty placed upon it by statute will do anything to disrupt the positive relationship that has existed between CCW, JNCC and the existing Welsh Office. I am sure that is an undertaking that CCW has given. It is one that I am certain all of us in this Chamber who are concerned about the Welsh environment can support.

Lord Roberts of Conwy

When I introduced Amendment No. 68 I stressed that it was a probing amendment. I had hoped that we should be given a fairly full explanation of exactly how the devolution of agriculture would work in practice, but perhaps that was too much to hope for. I hoped also that we should be told precisely how the assembly will relate to Brussels in agricultural matters. I say with all due respect that I do not think the Minister answered the point made by my noble friend Lord Mackay of Ardbrecknish when he asked how it would be possible for an assembly secretary to speak at Brussels in negotiations. It is our understanding that only lead Ministers have ever spoken in such negotiations, as far as we are aware. They, of course, are part of a unitary government whereas that will not be the case with an assembly secretary. However, I shall not press the amendment.

Lord Moran

I express my gratitude to the Minister for his courteous and helpful reply. He is quite right that the Countryside Council for Wales wrote to me yesterday and stated that it would be far better for the national assembly also to have responsibility for the special functions and to share in an ongoing commitment to a common approach to nature conservation. That may be a fine aspiration and it is something that I believe we would all support, but whether it is a satisfactory arrangement with which to go forward I am not certain. I should like to think about it, to study carefully in Hansard what the Minister said in his reply and to consult with others on the question. That said, I shall not press my amendment.

Lord Roberts of Conwy

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 to 76 not moved.]

Schedule 2 agreed to.

Lord Williams of Mostyn moved Amendment No. 76A:

After Schedule 2, insert the following new schedule—