HL Deb 03 June 1998 vol 590 cc369-87

(" .—(1) The executive functions of the Assembly shall be carried out by the Assembly Secretaries and by officials acting on their behalf.

(2) In the discharge of all such functions and otherwise, Assembly Secretaries shall be accountable to the Assembly for their actions and those of officials acting on their behalf.

(3) The Assembly may by resolution of no confidence at any time require any Assembly Secretary or Secretaries to resign.

(4) The standing orders of the Assembly shall provide for any motion of no confidence to take precedence over all other business and shall specify a reasonable minimum period of debate on such a motion.").

The noble Lord said: This new clause is inspired by the somewhat bare bones character of the preceding Clause 54. The purpose of the new clause is to clarify the functioning and accountability of the assembly secretaries.

Subsection (2) makes clear that they are accountable to the assembly. Subsection (3) gives the assembly power to pass a resolution of no confidence, and requires an assembly secretary's resignation. Subsection (4) of the new clause requires that such a Motion of no confidence be given precedence over all other business. This proposed procedure is not dissimilar to what happens in another place. Ministers, not infrequently in my experience, face critical Motions reducing their salaries by an insignificant amount, although devastating so far as concerns their reputations as ministers if the Motions are passed.

There is no doubt about the assembly's power over the executive. The first secretary has the power to dismiss as well as appoint assembly secretaries under Clause 54. The new clause gives the assembly a clear opportunity to vent its criticism of an assembly secretary who has transgressed. It overrides any protection that may be given to such a secretary by the first secretary who appointed him, or by the executive. I beg to move.

Lord Williams of Mostyn

I have already indicated to the Committee that we wish the assembly to begin with a Cabinet system, but do not consider it appropriate for that system to be entrenched forever and a day, as the new clause provides. I do not think that I can add further to what I said earlier; namely, that we expect to see most of the executive functions carried out on the assembly's behalf by the secretaries. But we do not think that one needs something set in stone.

There is a novel point which has not previously been discussed by the Committee. That is the question of votes of confidence. I have to say at once that on this we agree with the noble Lord who proposed the new clause: it is a matter of some importance. That is why the advisory group has been considering it. It is making detailed recommendations to the Secretary of State about the provisions which should be made in standing orders rather than on the face of the Bill to allow Motions of no confidence to be put down and debated. We shall be looking to those recommendations to provide advice on the issue raised by subsection (4). I believe that the noble Lord identifies an important point: the Motion of no confidence taking precedence over other business, and, I dare say, to be debated in plenary session. But we believe that these are proper matters for standing orders. The timing of debates would also need to be reflected in standing orders.

We anticipate that the recommendations will take careful account of the fact that unlike the House of Commons the assembly is elected for a fixed four-year period without the possibility of recourse to the electorate if the vote of no confidence in the first secretary, or any other secretary, were to be passed. I imagine again that the advisory group would be giving advice to the Secretary of State, should there be a successful vote of no confidence in the first secretary, as to when there should be a new assembly election for a replacement first secretary.

I can assure the Committee that the points made by the noble Lord, in particular the new point about votes of no confidence, are much in our mind. We expect the recommendations of the group to be available in the summer. Provision will be made in standing orders to deal with the questions which have been identified by the noble Lord.

I viewed his questions as inquiring and probing and have replied in that way.

Lord Rees

Before the Minister sits down, perhaps the noble Lord will allow me to ask one question. The most difficult question is to be addressed in due course. I refer to a vote of confidence in what for shorthand I call the administration of the assembly—the majority party's ruling group, however it is described. What would happen—as is, I think, a convention in this House or another place—if there were a measure to reduce the salary of one of those ministers in the assembly; in other words, if there were a vote of no confidence in a particular member of the administration? I do not expect an immediate answer. However, when the noble Lord deals with the wider question of a vote of confidence in the whole administration, perhaps he will address his mind to that question too.

Lord Williams of Mostyn

We await the recommendations of the advisory group. I believe that the noble Lord's question is well founded. I anticipate this possible outcome: that the vote for reduction of salary in the conventional way, if directed against the first secretary or any subordinate secretary, would be treated as a vote of no confidence. It would then be for standing orders to prescribe exactly what should happen in terms of precedence of business, re-election, reselection and so forth. That is, I believe, the answer that I can presently give to the noble Lord.

5 p.m.

Lord Roberts of Conwy

I am grateful to the Minister for that reply. My first reaction is that we are leaving a great deal to standing orders. I am sure that he and the Committee are becoming increasingly aware of that. I make that as a general point rather than as a specific point related to the amendment.

I am pleased that the Minister appreciates the point that we have made in the new clause about the possibility of the assembly being critical of an assembly secretary and having at least the opportunity to declare its criticism by a motion of no confidence. It is a valuable suggestion because it has a resemblance to proceedings in the other place which are of value.

I conclude by pointing out that as the Bill stands the first secretary has the power to appoint and dismiss. However, it is conceivable that circumstances could arise where an assembly secretary is rightly under severe criticism but is protected by the first secretary or by the executive as a whole. In those circumstances, it is clear that we would wish the assembly to have the opportunity to be critical and to vent its criticism openly.

Lord Williams of Mostyn

Before the noble Lord sits down, that would be the kind of circumstance envisaged by the noble Lord, Lord Rees. If there were a censure motion against the secretary in terms of a reduction in salary which was not then acted upon by the first secretary, it seems to me that standing orders could reasonably allow for a second stage; in other words, an impugnment of the first secretary on the basis that he had not followed the assembly's guidance expressed on the conduct of one of his colleagues. It seems to me that there is not an insuperable difficulty there.

Lord Roberts of Conwy

I do not believe that there is a difficulty. I am sure that the Minister appreciates that I am simply anxious to explore the point and to have it on the record for others to consider in due course. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 [Committees]:

[Amendment No. 120 not moved.]

Clause 55 agreed to.

Clause 56 agreed to.

Clause 57 [Executive committee]:

[Amendments Nos. 121 to 139 not moved.]

Clause 57 agreed to.

Clause 58 [Subject committees]:

[Amendments Nos. 140 to 148 not moved.]

Viscount St. Davids moved Amendment No. 148A:

Page 30, line 2, at end insert—

("( ) The Assembly First Secretary shall give one of the subject committees responsibility for common land in Wales with a remit to issue guidance, which may be revised from time to time, to local authorities, landowners and glaziers on the proper management of the land, with particular reference to enhancing its agricultural potential and natural beauty (including flora and fauna).").

The noble Viscount said: In moving Amendment No. 148A, I shall speak also to Amendment No. 271A. The management of rural land in England and Wales has for some time been a matter of great controversy. Admittedly, it is a difficult problem since various interests are involved. I refer to the owners of the land who have mineral and shooting rights which they wish to protect; graziers who have grazing rights which they, too, wish to protect; and members of the general public who believe that open access for all or any activity is legitimate since the land is "common".

The Registration of Commons Act 1965 registered the ownership and the grazing rights, but it failed to address the management of the land. The Conservative manifesto of 1987 promised legislation on management based on the findings of the Common Land Forum. That forum recommended a management system for rural common land based on a committee for each parcel of land consisting of representatives of all interested parties. The legislation never appeared.

Common land is extensive throughout mid and north Wales. The Royal Society for the Protection of Birds estimates that some 36 per cent. of rough grazing in Wales is on common land. It also estimates that about one-third of common land lies within SSSIs and large areas lie within the national parks and ESAs. In the late 1980s, 57 per cent. of all commons in Wales had only one right or no rights registered, leaving them to be subject to deregistration. Furthermore, the owners of common land have no economic interest in their proper management.

As I have no personal interest in common land, it may be helpful to your Lordships if I relate the experience of the noble Lord, Lord Williams of Elvel, who cannot be with us at the moment because he has a meeting in another part of the building. The noble Lord lives on the edge of Gilwern Common in Radnorshire, an area of some 800 acres. He is also a grazier, although he does not exercise those limited rights. The land is owned by the Glanusk Estate, which is a trust of the Legge-Bourke family run, as he has found out, from the office of Knight, Frank & Rutley in Hungerford.

I do not wish to imply any criticism of the trust, its owners or the agents because they are managing the lands subject to the provisions of the law as it now stands. Since the noble Lord, Lord Williams, has lived there for the last 18 years there has been no management of the land at all. Motorbikes and 4x4s seem to be able to roam around on the land at will. Fly-tipping is general, as is overgrazing. Land which used to support curlews and lapwings is now bereft of either. Even though Radnor is an ESA, no mechanism is available to require the owners to manage their land properly.

The amendment has two purposes: first, to ensure that one of the subject committees of the National Assembly of Wales addresses the whole matter with a remit to give guidance of an authoritative nature to local authorities, landowners and graziers on how common land should be properly managed. Secondly, in doing so, to ensure that previous neglect of wildlife on Welsh common land is rectified and made up. I beg to move.

Lord Hardy of Wath

I echo the comments of the noble Viscount, Lord St. Davids, and support the views of my noble friend Lord Williams of Elvel. The matter is serious and deserves attention. The noble Viscount reminded the Committee that the 1965 Act did not meet the obvious need, the crying need, for the proper management of common land. It is a great pity that that promise was not fulfilled because common lands and many other public open spaces have suffered seriously over the past decade.

The result of that failure has been similar in the extensive areas of common land in Wales and in many similar areas in England. The noble Viscount referred to the experience of my noble friend Lord Williams as regards the illegal use of motor vehicles. Last summer, during my brief retirement between leaving the House of Commons and joining this House, I spent a good deal of time observing the illicit use of motorcycles on public open spaces. I saw vehicles which were unlicensed, unregistered and ridden by riders who had probably not passed their test or in some cases were not old enough to take it. I watched them ride over newly-planted saplings, shrubs and flowers, inflicting thousands of pounds worth of damage.

I became accustomed to waiting for police helicopters, which paid a number of visits, to depart and to see five minutes later half a dozen young motorcyclists appear. They were all committing an average of at least five offences because, to get on to the public space or common land, they quite often use public roads. Then there are those affluent people in society who buy 4x4 vehicles and do untold and perhaps greater damage by the use of those larger machines.

It really is quite outrageous that there should be such appalling damage. We have to understand that this is not limited to those commons which abut conurbations and populated areas; indeed, the reach of destruction is spreading far more widely and remorselessly. Action really does need to be taken. I am, therefore, delighted to be able to support the noble Viscount in this amendment. I hope that the Government will ensure that it has a fair wind and that the Welsh assembly understands that, if it takes the necessary action with the degree of urgency which is certainly deserved, that action and its example will be rapidly followed in England. We must have regard for the retention of the ecological interest and for the safeguard of the national advantage. We must ensure that the attractive areas of our country are not subject to the ruinous experience of the past decade.

Lord Rees

In rising to speak to this amendment I should, first, declare a slight interest in common land not, I should say, in mid or north Wales but in south Wales where we have the same problems. Of course I recognise some of the problems which have been identified so eloquently by the noble Lord who has just spoken and, indeed, by the noble Viscount. However, we must stand back a little from the question and ask ourselves whether the various issues which have been raised are covered by the functions set out in Schedule 2 to the Bill.

We may have to face the fact that, because they are so complex, such issues are really more a matter for central government rather than the Welsh assembly. I am not advancing any particular view, but that fact must be considered with some care. I do not believe that it would be right for us to identify problems close to our heart in the Principality and throw them to the new assembly or to any Select Committee without stopping to think about how they fit into the broad framework which we are considering as a constitutional question.

Therefore, I sympathise with the points raised, especially as regards motor cyclists and others who, with no permission, no rights and perhaps no licences, are despoiling the countryside. I am entirely in sympathy with the views expressed in that respect. However, there are also wider issues. It is not right to assume that the owners of common land, limited though their ownership may be by comparison with normal agricultural land, do not have some care and responsibility in this regard. Indeed, if such matters are not considered with considerable care in advance from all points of view, they might be saddled with public and economic responsibilities which I do not believe should be the case.

While I sympathise with the concerns that led my noble friend Lord St. Davids and the noble Lord, Lord Williams of Elvel, to table the amendment—and we are very sad that the latter could not be present today to tell us about his personal experience in such matters—I hope, having made the general point, that we can leave the matter to be considered in a slightly wider context at a later stage.

The Earl of Courtown

I rise to express my support for my noble friend Lord St. Davids. My noble friend Lord Rees is quite correct to say that this is a highly complex area. As far as concerns common land, there is, as my noble friend said, great misunderstanding on the part of the public as regards access to such land. I have one point to make regarding the agents for the area of land to which reference has been made where the noble Lord, Lord Williams of Elvel, lives. Yes, indeed, Knight, Frank and Rutley do manage the land. The agent in question is both a professional and a personal friend of mine and does in fact live very close to the area. I am intensely interested to hear what the Minister has to say as regards giving assurances to my noble friend and the noble Lord on this matter.

Lord Hooson

Many years ago I was appointed as an assistant commissioner of commons to consider the enclosure of land in an urban common where different considerations applied. Such matters are very complex. People think of "common land" as meaning common access. But that is not so: common land means that there are common rights of grazing or other common rights, which I need not outline at present. They may be supplemented by public rights of way established by prescription.

One of the concerns that has been expressed today is if in fact motor cyclists, and so on, have uninterrupted access for the period of years which is required to establish a prescriptive right, prescriptive rights of access could be established for motor vehicles. Therefore, management in this respect is most important. It is an extremely complex matter. I am sure that the Welsh assembly would want one of its committees to look into the matter at some time, but it could be dealt with only on a national basis with representations being made by the Welsh assembly.

The matter is far too complex for us to think that guidance can be given, for example, to local authorities when the latter may have no control at all. I understand that the piece of land referred to in Gilwern is privately owned. There must be rights of common in that respect—that is, rights of grazing in common. Indeed, there may be other rights in common; but, as far as we know, there may be no rights of public access. However, from the description that has been given, it is possible that public rights of access have been established by prescription, but I very much doubt that the assembly could give overall guidance on the matter. I believe that it is a matter which should perhaps be transferred gradually and over a period of time from, as it were, parliamentary consideration to assembly consideration. But I do not believe that the time is now ripe for such action.

Lord Prys-Davies

I believe that the advice of the noble Lord, Lord Hooson, to the Committee is very sound. I have had some dealings with common land in Wales. The phrase "open space" has been used this afternoon when it is an open space, but when it is not in law an open space. Clause 34 says: The Assembly may consider, and make appropriate representations about, any matter affecting Wales". But, as has been said, we are discussing a highly complex matter. It has occurred to me that this is an issue which might possibly interest a law commission as regards considering how the law in this particular area can be improved.

5.15 p.m.

Lord Williams of Mostyn

The advice given by the noble Lords, Lord Hooson and Lord Rees, as well as my noble friend Lord Prys-Davies is right; we are indeed discussing a complex matter. It is possible that the first secretary may wish to give responsibility for matters relating to common land to one of the subject committees. It would be a moot question as to whether it should be the agriculture committee, over which there could be some argument, or whether it should be a subject committee which deals with the environment, planning and related matters.

I do not believe it appropriate for such a provision to be on the face of the Bill. However, I have two points to make. First, the Government are extremely sympathetic to the thrust of the argument put forward by the noble Viscount. My noble friend Lord Williams of Elvel was courteous enough to give me prior notice of what was likely to be said this afternoon. So we do view the matter with some seriousness.

By a felicitous coincidence, a comprehensive research project has been commissioned by DETR. The Welsh Office was represented on the steering group which looked into all aspects of common land. It published this very month a good practice guide on the management of common land. As I said, that is, I hope, a happy coincidence, although the noble Earl may be about to tell me that the document is completely valueless. However, I should like to reassure Members of the Committee that we treat such matters with seriousness. We expect the assembly to be interested in such matters, but we do not believe it should be prescribed on the face of the Bill.

The Earl of Courtown

Can the Minister say whether the report gives an indication of the amount of common land that exists in Wales?

Lord Williams of Mostyn

I do not know the answer to that. I focused particularly on the good practice guide on the management of common land because it seemed to me that answered the point made by the noble Viscount; namely, that there should be guidance for local authorities on this matter.

Viscount St. Davids

I thank the noble Lord for his encouraging reply. I had hoped he might go a little further as no doubt he would not have missed the irony of my asking him to fulfil an election manifesto of the previous administration made 11 years ago. But we should let that pass. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 149 to 154 not moved.]

Lord Elis-Thomas moved Amendment No. 154A:

Page 30, line 18, at end insert—

("( ) Each subject committee shall be responsible for monitoring the performance of the non-departmental public bodies within the fields covered by that subject committee.").

The noble Lord said: This amendment draws attention to the need for a creative relationship between the subject committees and the non-departmental public bodies operating in fields covered by the subject committees. I again declare an interest as the chair of a non-departmental public body. It is the smallest, most perfectly formed and most bilingual non-departmental public body! During the years in which I have had the honour to hold that post I have valued the link between the Welsh Language Board and the relevant government department at the Welsh Office and its cultural and education department with which we deal.

It is important that much of the loose talk that went on in the country prior to the referendum should now be laid to rest. I have been a victim in the street and occasionally in a public house—although never, to my knowledge, in the Gresford rugby club, which is so frequented by my noble friend Lord Thomas of Gresford, according to his speeches—of what might be called "quango bashing". There was a kind of fever abroad prompted by Mr. Rhodri Morgan, MP, another potential candidate for the national assembly. That fever consisted of attacking all non-departmental public bodies, their members and their staff for being Conservatives. That was patently untrue in many cases. It was implied that with the establishment of the great national assembly, quangos would be swept away. It was implied that non-departmental public bodies would no longer he necessary and that their functions would somehow be taken over by the 2,000-odd officials and the 60 elected members of the assembly. That always appeared to me to be a piece of false optimism or a piece of propaganda because traditionally there have been functions which non-departmental public bodies have carried out at arm's length on behalf of government. That is why they were created and that is why they are described as non-departmental government bodies.

My amendment seeks to explore the relationship between remaining NDPBs, which may or may not be re-organised by the assembly, and the assembly itself. We have already debated some of the schedules to the Bill and I shall not discuss them now. There is reference to bodies which may lose or gain functions and bodies which may lose functions or gain functions with consent. Later we shall discuss other bodies which may be called to account by the assembly, although they are not directly under its jurisdiction, as it were. How will the Welsh Office and the Government look more dispassionately at the role of non-departmental public bodies than was the case during the referendum campaign and consider how they may relate to the assembly? What kind of creative relationships may be established?

I am not making out a case for myself here. I have been accused of putting job applications on the face of the Bill, as it were. However, there are cases where members of public bodies may remain in post while being members of the assembly. That could create a creative relationship between those bodies. In other cases it may be considered preferable that such bodies—for example, the development agency, which we shall discuss later—should remain very much at arm's length from the assembly and there should not be a mix of the membership. It cannot be beyond the wit of our great democratic nation to look for ways of managing public bodies and making them accountable which does not follow necessarily the inherited model. In other words, there is a case for mixing the membership of various bodies without damaging the integrity of those bodies or the need for artistic freedom of judgment in such areas as the arts and culture.

I hope the Minister can indicate that he foresees the assembly having a creative relationship with NDPBs in Wales and that there will be effective monitoring of that. One of the most successful developments in the whole area of public administration and the management of public services has been the establishment of targets, strategies, schemes, business plans and other such things and the monitoring of performance vis-à-vis such targets and strategies. I hope that the assembly will pursue rigorously the need to monitor all our public bodies in Wales but will do so in a spirit of creative development rather than the negative quango bashing which occurred during the referendum campaign. I beg to move.

Lord Mackay of Ardbrecknish

This is an interesting amendment which enables us to reflect on the relationship between quango members and the new assembly. The following phrase comes to mind; namely, "There is nothing like a quango basher come to repentance". Last year we were told there would be a great bonfire of quangos. It is a good job it was not a cold winter because I do not think any Members of the Committee would have been warmed by the bonfire of quangos. Indeed, far from having a bonfire of quangos the party opposite has established a considerable number of additional quangos. Some quango members have been replaced. I say, charitably, that some members of my party who were on quangos have been replaced by more independent minded people. Uncharitably, I might say that members of my party have been replaced on a number of quangos by members of the Government's party. It is interesting to note that there has not been much of a bonfire. Indeed our monetary policy is now governed by the biggest quango of all; namely, the Monetary Policy Committee of the Bank of England. That is a non-departmental public body if anything is, and one that wields huge power over the economic life of our country. But that is another issue. I am not sure that the Welsh Language Board, of which the noble Lord. Lord Elis-Thomas, is the distinguished chairman, wields anything like the power of the Monetary Policy Committee of the Bank of England. Nevertheless, the Welsh Language Board plays an important role. It has certainly played an important role in this Committee so far as we have heard much about it.

The noble Lord posed some interesting questions about the relationship between the non-departmental public bodies in Wales and the assembly. The noble Lord, Lord Elis-Thomas, has already made it clear that he is a candidate for the assembly. Yesterday he appeared to attempt a little electioneering, although I do not suppose there are many voters from his constituency in this Chamber. Today he appears to be trying to ensure that he can keep his chairmanship of a quango and be elected to the Welsh assembly. I see no problem in that. When I joined this Chamber I was for a little while the chairman of a quango, the Sea Fish Industry Authority. I was perfectly able to be a Member of this Chamber and to chair the quango. All I had to do was obey some rules laid down, known as the Addison Rules, which meant that I could not answer for my quango; the Minister had to do that. Fortunately, we never got into enough trouble for the Minister to have to come to the Dispatch Box and answer for us. Equally, I took the view that I could not in all justice speak on the issues over which my quango held some sway. Therefore I did not take part in any of the fisheries debates in this House. I thought that that was possibly taking the Addison Rules a little too far, but it seemed the right and proper thing to do considering that I was the government-appointed chairman of the body.

I shall not even attempt to suggest that there might be a Welsh language equivalent of Addison. The noble Lord may wish to advise me on that point. I am sure that the Addison Rules could easily be applied to members of the Welsh assembly who sit on quangos. That would be a perfectly reasonable way for the assembly to proceed. I hope the Minister might be able to give some indication of the Government's thinking on that matter. It would seem to me unfortunate if walls had to be drawn between members of non-departmental public bodies and members of the Welsh assembly. I simply do not see the need for that.

The point of the noble Lord's amendment, in relation to which he raised the discussion on quango membership and the assembly, is that the non-departmental public bodies which operate within the fields covered by the assembly should have their performance monitored by the assembly. I cannot see that there is anything in the Bill to prevent the assembly discussing the issues for which the bodies are responsible. Indeed, I think that they would clearly be well within their rights to do so. I think they would also be within their rights to discuss issues surrounding quangos whose responsibilities were not directly under the Welsh assembly umbrella. One clause makes it clear that the assembly can debate almost any matter, whether it is within its bailiwick or not. It therefore seems obvious that, so far as the responsibilities of any non-departmental public body are concerned, the Welsh assembly will be able to discuss the issues.

The next step is: can the assembly monitor those matters? Can it ask the chairman and others to come before it? Certainly this House can do that. In my capacity as chairman of the Sea Fish Industry Authority I appeared before the European Committee dealing with fisheries in this House. So it is perfectly possible. I hope the Minister will be able to assure the noble Lord that the Welsh assembly will be able to do that. Without in any way disparaging the work of the assembly, it will not in fact have a terrific amount to do when one considers the burdens placed on it in comparison with Members of the other place or Members of this House. It would seem perfectly sensible that tasks such as that mentioned in the noble Lord's amendment could reasonably be added to the assembly's workload. Many of the public bodies will deal with matters of great importance to people in Wales and Welsh life. It is right and proper that there should be some monitoring arrangements between the assembly and those bodies. If it helps the amendment proposed by the noble Lord, Lord Elis-Thomas, on its way, I give it a fair wind. I hope that the Minister will be able to respond positively to the points we have made about the bodies.

5.30 p.m.

Lord Hooson

It seems to me that it is an essential duty of the assembly to monitor the work of non-departmental public bodies—with a view, I hope, to abolishing a number of them. One of the purposes of setting up the assembly was to deal with the question of quangos. The noble Lord, Lord Mackay, adverted to the fact that the workload of the assembly, though it will be considerable, will not be overbearing. We are a country of fewer than 3 million people. We shall have 60 elected or indirectly elected representatives. We shall have a large Civil Service in Cardiff—probably 2,000 people. Why should not much of the work presently conducted by quangos be conducted by the assembly?

I am a great believer in delegating executive power to people and, if they do not discharge that power correctly, getting rid of them. The assembly can do that. It can surely summon before it chairmen, managers and so on of non-departmental public bodies and question them. Surely that will be one of its functions. I understand, as the Minister will be able to confirm, that there is a power in the Bill for the assembly, with proper due consideration to the functions carried out by those bodies, to decide that some of them are not necessary. Certainly, some will be necessary. However, I am saying that one of the duties of the assembly will be to examine this whole question. I do not think that the noble Lord, Lord Mackay, should be too sanguine about the future of some of the quangos.

Lord Williams of Mostyn

In response to the question raised by the noble Lord, Lord Hooson, he probably has in mind Clause 29 of the Bill indicating the powers to which he refers.

There are two distinct questions here. One is: can there be overlapping membership of the assembly and the non-departmental public bodies? We propose to consult on that matter in the context of the use of the Order in Council power under Clause 12 of the Bill. It is important to bear in mind that not all non-departmental bodies are the same. At the one end of the spectrum, for example, is a body that is extremely well run in public scrutiny, admirably opened up by the noble Lord, Lord Elis-Thomas; namely, the Welsh Language Board. But at the other end of the spectrum one has a wholly dissimilar body, the National Library, which is again admirably run but operates in quite a different context. So the question of overlapping membership is important.

It is also important to bear in mind a concern expressed by the noble Lord, Lord Cledwyn of Penrhos, on earlier occasions—namely, what measures should be considered in relation to abatement of salaries—so that one could not simply have an acquisition of salaries by being a member of the assembly and many other quangos or NDPBs. That matter certainly needs to be considered.

The advisory commission has given a good deal of thought to this matter. Noble Lords will see some useful suggestions for consultation at paragraphs 6.8 to 6.11. It suggests not the outcome proposed in this amendment, but a division of responsibilities between the assembly secretary and the subject committee to ensure proper accountability. That matter is out to consultation by NAAG. Noble Lords may think it better to await its views. The outcome will be recommendations which I dare say will be reflected in the assembly's standing orders.

Whatever the standing orders provisions are in detail, they will of course be designed to achieve democratic accountability, which has been lacking in some aspects—not all—of some, but not all, of the quangos. It is important to bear in mind that there is a diversity of them in Wales.

It therefore seems to me that we share a common purpose; namely, openness, accountability and, as the noble Lord, Lord Mackay of Ardbrecknish, indicated, good-quality representation on the quangos. That is very important. It seems to me that the assembly would have the power to question and monitor, and that it ought to do so in a co-operative and discrete way. That is essentially a matter for NAAG's eventual recommendations and for the assembly's conclusion on the standing order powers.

I frequently say that matters are for standing orders. The noble Lord, Lord Roberts, said that this is leaving rather a lot to standing orders. But the enormous bulk of arrangements in another place depends entirely upon the standing orders, which have developed organically over the years to meet changing circumstances and changing requirements. Your Lordships' practice is not dissimilar—though, being infinitely more civilised, we do not need anyone to order us. But we have our ways, which are not set down in statute, and are much the better for that.

Lord Thomas of Gresford

The noble Lord, Lord Elis-Thomas, has introduced an interesting discussion on subject committees. Although Clause 58 sets up the subject committees, it does not attempt to set our their responsibilities; nor does it set out their relationship with the cabinet system that is now to be put in place. As we understand it, the executive committee of the assembly secretaries—that is, the cabinet—will be the body that will be responsible for formulating policy, taking decisions and, through the civil servants in their various areas, carrying out those decisions. It seems to me that the role of the subject committees is an advisory one. The committees do not appear to share the executive responsibility of the cabinet that is to be formed in the Welsh assembly. It is interesting that the working group suggested that assembly secretaries should not be members of the subject committees at all.

The noble Lord, Lord Elis-Thomas has highlighted the fact that one function to be performed by the subject committees is to monitor the way in which the non-departmental public bodies carry out their role. But that is only one of many roles. They will presumably be concerned to meet together to discuss the various proposals that are put to them by the executive. They will be there to advise and have input into policy but will not be responsible for it or for its being carried out. As I understand it, that is the essential distinction to be drawn between the cabinet system that the Government are adopting now in response to representations, pressure and general feeling from all sides of this Chamber and from another place. The cabinet system alters completely the role of the subject committees. Initially the committees were seen as being rather like council committees, carrying out executive tasks. That will no longer be the position. The noble Lord has introduced an interesting topic, to which we shall no doubt return.

Lord Elis-Thomas

I am grateful to all noble Lords who have spoken in this debate. In particular, I am grateful to the noble Lord, Lord Thomas of Gresford, for taking on my argument. This is an important issue. The Minister referred to the advisory group report. That group seems to be going for a separation of powers, with an executive structure, which might reduce the subject committees to mini-assemblies in which there is a government in opposition, as it were, rather than more participative, and democratic bodies.

Lord Simon of Glaisdale

Hear, hear!

Lord Elis-Thomas

I am always grateful for the support of my noble and learned friend Lord Simon of Glaisdale. We need to explore this issue. The national advisory group's initial recommendations have been referred to. I am a little concerned. I feel that important public bodies such as NDPBs should respond not just to the secretaries and officials but also to the subject committee as a whole. They are public bodies created by, and accountable to, the whole of the assembly as a body corporate. I do not want the notion of the body corporate to be lost. It is cynulleidfaol. It is the whole congregation, as it were, the cynull gathered together. That is what the cynulliad is. Therefore it is a congregation in that sense, and I do not want to see that lost. I do not want to see the Scottish model of ministers and Crown in parliament imposed upon a democratic people such as the Welsh. We need to create models of public administration that are more in line with our tradition. I hope that we can continue this debate and flag the matter for the assembly itself.

5.45 p.m.

Lord Mackay of Ardbrecknish

I can perhaps help the noble Lord. Clause 75 states: The Assembly may require any person to whom subsection (2) applies—

  1. (a) to attend proceedings of the Assembly for the purpose of giving evidence, or
  2. (b) to produce … documents".
The bodies to which subsection (2) applies are listed in Schedules 3 and 4. Unless Wales has a plethora of quangos of which I know not, the list seems to me to cover every possible non-departmental body which exists, both inside Wales alone and in the wider UK, including Wales—including the Sea Fish Industry Authority, which I mentioned earlier. Perhaps, whatever happens and whatever way the assembly decides to organise itself, the power exists in Clause 75.

Lord Prys-Davies

Before the noble Lord, Lord Elis-Thomas, responds to that intervention by the noble Lord, Lord Mackay, as I see it, the critical issue raised by Amendment No. 154A is whether the subject committee itself will be responsible for monitoring the performance of the non-departmental public bodies. When the White Paper was published, it was a general understanding that these subject committees would themselves exercise executive authority. That idea seems to have gone. We are therefore entitled to ask what will be the role of a subject committee and to what extent it will enable the members of the assembly to participate fully in the work of the assembly. If that is the point which is being made by the noble Lord, Lord Elis-Thomas, I have great sympathy with it.

Lord Elis-Thomas

I thank the noble Lords, Lord Prys-Davies and Lord Mackay. The question is precisely as both noble Lords have said. The fact of accountability in one form or another is not disputed by the clause to which the noble Lord referred. It is the form of accountability and how that is to happen and the nature of the relationship that concerns us. I believe I have said enough to indicate that it is my intention to withdraw the amendment, but we may well wish to return to the matter at a later stage, perhaps in a more comprehensive form, and look at the role of subject committees in the light of whatever further advice emerges from the national advisory group. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

Clause 59 [Subordinate legislation scrutiny committee]:

[Amendment No. 155 not moved.]

Lord Williams of Mostyn moved Amendment No. 155A.

Page 30. line 43, leave out from second ("made") to ("and") in line 46 and insert ("in exercise of a function in relation to the exercise of which by the Assembly any relevant Parliamentary procedural provision has effect.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 59, as amended, shall stand part of the Bill?

Lord Simon of Glaisdale

Perhaps I may ask some questions about this clause, which I confess I find extremely difficult to understand. First, as Members of the Committee put up earlier with a technical drafting point, perhaps I may make another. In subsection (3), paragraph (a) ends with the word "and", and paragraph (b) follows straight on. That is perfectly easy to follow. One realises immediately that they are conjunctive. Similarly, in subsection (4), one realises immediately that the two paragraphs are disjunctive. However, when one looks at subsection (6), we have to read six lines before we find that they are conjunctive when the word "and" appears.

That is not the only example in this Bill, but it is a clear one because it compares with the two other subsections. It would be much easier to understand— say in the case of subsection (6)—if paragraphs (a), (b) and (c) ended with the word "and".

I know that a long-established drafting method is used in that clause and in this Bill. Indeed, it follows the general, though not universal, literary conventions. The noble Lord, Lord Kennet, is in his place and will correct me if I am wrong about that. Certainly in a statute it would be much easier to understand if each sub-paragraph either ended conjunctively or disjunctively. That is purely a drafting point.

I find it difficult to understand exactly what subsections (3), (4) and (6) are intended to do and how they work. Subsection (3)(a) deals with power to consider—a duty to consider—assembly general subordinate legislation. That is defined in subsection (6) as, required to be made by statutory instrument … made or proposed to be made by the Assembly … not made or proposed to be made jointly with a Minister", and in paragraph (d), "not local in nature". Perhaps I can pause there and ask what that is intended to cover. Presumably the Welsh assembly is not to be charged with the consideration of private Acts of a local nature which come to Westminster so far as they arise in Wales. Or is it? If not, what do the words, "not local in nature" mean?

That relates to assembly general subordinate legislation. But what is "relevant Welsh subordinate legislation"? It is defined in subsection (7), in which paragraph (a) is common to subsection (6); in other words, assembly general subordinate legislation. Paragraph (b) is a specific exception which relates only to Forestry Commission orders. What is the relationship?

When I raised the question of subordinate legislation the Minister helpfully and courteously said that he would write to me to explain and would also consider what is absolutely necessary; that is, that the matter should be properly defined in Clause 20. I understood that all secondary legislation which extends to Wales—in so far as it does extend to Wales—would be within the cognisance of the assembly and would be considered by it. I asked whether there was any other species of subordinate legislation which was not at the moment the responsibility of the Secretary of State. The Minister said that he would consider that too and write to me about it.

I thank the noble Lord once again for his usual courtesy and helpfulness. But it may be advisable for him to place a copy of his letter in the Library; it is probably a matter of general concern. Those are the questions I wish to ask. I really wish to have the whole section explained to me. If the Minister says that I must be patient and await his letter, I shall try to be patient.

Lord Mackay of Ardbrecknish

Perhaps I can intervene for a moment. The noble and learned Lord, Lord Simon, raises some important issues. If the noble and learned Lord has trouble reading statutes because he cannot decide whether they are conjunctive or disjunctive, he can imagine what difficulty the rest of us have who are not lawyers. He makes a good point which never occurred to me.

Lord Simon of Glaisdale

The Minister is not only a lawyer, but has the supreme accolade of his colleagues in having been elected to be chairman of the Bar Council. I have no doubt therefore that he understands it.

Lord Mackay of Ardbrecknish

I am not sure, but the noble and learned Lord may be telling me that I am the meat between the sandwich or something like that. However, he makes a good point.

The more important point to which the noble and learned Lord drew my attention relates to subsection (6)(c). Apparently, subordinate legislation may be made jointly with a Minister of the Crown and in those circumstances the Welsh assembly will not deal with it, if I read it correctly. My understanding was that the legislative role of the Welsh assembly was limited, but that it was to deal with secondary legislation. I am a little surprised to have my attention drawn to circumstances in which secondary legislation for Wales will be dealt with jointly with a Minister here, but will not need to go before the assembly.

Perhaps the Minister can give me an example. I sometimes find it easier to understand a concrete example than theory in these matters. In the example that I am sure the Minister will give me, will the Secretary of State for Wales be involved? It is a difficult concept, as the poor old Secretary of State for Wales does not have much in the way of ministerial responsibility left over after power is devolved.

I am in some difficulty when I read the clause. We will come to secondary legislation in a moment, but the whole question of secondary legislation is extremely difficult. I see the noble Earl, Lord Russell, poised in his seat and I know that he is a great hawk when it comes to watching secondary legislation. I worry that in cases falling within paragraph (c) the Welsh assembly may be blocked out and Ministers may find it convenient in the future to find ways to block it out. Perhaps the Minister can explain exactly what is covered in that regard.

6 p.m.

Lord Prys-Davies

I should be grateful if my noble friend would clarify the point that has been raised by the noble Lord, Lord Mackay of Ardbrecknish. I understood from the memorandum which the Leader of the Commons sent to the Joint Committee on Statutory Instruments that some of the orders that will be made jointly will have to be submitted to the subordinate legislation scrutiny committee of the Welsh assembly and also to the Joint Committee on Statutory Instruments here at Westminster. My worry about that is what the position will be if the terms of reference of the subordinate legislation scrutiny committee of the Welsh assembly are not analogous to the terms of the reference of the Joint Committee on Statutory Instruments. I look forward to my noble friend's response to the points that have been raised.

Lord Williams of Mostyn

As will presently become apparent, knowledge of the law is not a necessary prerequisite for being elected chairman of the Bar.

Quite detailed questions have been raised, some of which I can readily answer; others need a little more research. I doubt that the answer that I shall give will be sufficiently comprehensive to do justice to the questions which have been put. I will take up the courteous offer from the noble and learned Lord, Lord Simon of Glaisdale, to write immediately to him. I will make it a rule that all letters which are sent on similar topics are put in the Library for the reason that he mentioned.

As to the question of disjunctives and conjunctives, I agree with the noble and learned Lord that this has been the usual pattern of parliamentary draftsmanship in the past. It is something I shall listen to. It is not enormously difficult to follow because of the position of the "and" or the "or"; it is the substantive wording itself which is more difficult. However, I take the noble and learned Lord's point.

The noble and learned Lord asked for an example of a piece of legislation which was not local in nature. Local in nature apparently is an accepted definition and would include, for instance, a traffic regulation order relating to a particular road.

Devolving from what the noble and learned Lord, Lord Simon of Glaisdale, said, the noble Lord, Lord Mackay of Ardbrecknish, asked what was the distinction essentially between general subordinate legislation and joint legislation, and he asked me to give examples. The examples which have immediately sprung to hand and mind are that there might well be agricultural legislation in conjunction with MAFF or transport orders jointly with DETR. The essential difference—and I recognise that this is a simplistic answer which needs development in the way that the noble and learned Lord asked—is that general subordinate legislation is to come under the assembly's scrutiny committee. If there is joint legislation—two examples of which I have given—that will be scrutinised by the joint scrutiny committee in Parliament. That is a fairly limited answer to subtle questions. If it requires expansion, as I think it will, I undertake to give it within seven days of today.

Lord Simon of Glaisdale

I would not wish to hold the noble Lord, who has responsibilities not only for this Bill but for a number of matters which are now current, to a seven-day agreement. I shall be quite content to have an answer before Report stage.

As to paragraph (d), the noble Lord's answer indicated that it was not intended to cover what would be the subject matter of a private Bill of a local nature. I wonder whether it should not be? Why should a local Bill promoted by, say, Swansea have to come to London rather than be considered locally by a body which is much more cognisant of the local situation?

As for the rest, the noble Lord said he would consider it with the draftsman and I am obliged for that. I am still very puzzled about this clause and I am grateful for the further consideration.

Lord Stanley of Alderley

Will the Minister, when he deposits the letter in the Library, kindly address one to me? I live rather a long way away sometimes.

Lord Williams of Mostyn

I try to be reasonably selective in sending out letters to noble Lords who have perhaps spoken on a distinct topic in a limited debate or who have expressed general interest on Second Reading. I try to circulate letters as widely as possible. I shall make sure that the noble Lord has a copy of this letter. It would be appropriate if I ensure that the noble Lords, Lord Mackay of Ardbrecknish and Lord Prys-Davies, also receive a copy as they have raised the same detailed questions. I automatically send them to the noble Lords, Lord Roberts of Conwy and Lord Thomas of Gresford.

Lord Mackay of Ardbrecknish

Before the noble Lord sits down finally, I am grateful to him for the answers that he gave. I understand that in the time available his answers were pretty broad brush about agriculture and transport. We discussed agriculture late last night and it will be discussed again in a little while. Because of the European input, secondary legislation statutory instruments on issues with a European connection will inevitably have to be the same in England and Wales—and probably in Scotland as well, but that is a different matter—and if the Welsh assembly is to be a devolved body responsible for agriculture, it seems odd that it will not be allowed to discuss or even nod through those statutory instruments. The procedure will be entirely based here.

If the noble Lord can be helpful in any letter about this I would be grateful. I may have to study this and return to it. At the risk of sounding as if I have clothed myself in the devolutionary mantle, it seems that we are giving to agriculture on the one hand and clawing back bits of it with the other. I do not think I am wrong about this and I may have to look at it again. I would be grateful if the Minister could also look at it to see whether there is any problem with powers over agriculture and other devolved issues.

Lord Williams of Mostyn

That is a perfectly fair question. I will respond as fully as I can in the same letter.

Clause 59, as amended, agreed to.

Lord Elis-Thomas moved Amendment No. 156:

After Clause 59, insert the following new clause—