§ 3.6 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 47 [Regulation of procedure]:
§ [Amendment No. 112 not moved.]
§ On Question, Whether Clause 47 shall stand part of the Bill?
§ Lord Simon of Glaisdale
Perhaps I may draw attention to three matters in Clause 47, the first two of which are purely drafting points. First, subsection (2) starts with the word "but". That is a fairly recent technique in drafting and is very much to be commended because it takes the place of the older subsection (1) notwithstanding the provisions of subsection (2), and so on. In other words, subsection (2) applies, notwithstanding the provisions of subsection (1). The "but" technique is very much an advantage. I note that the Minister has tabled an amendment to that effect regarding a later clause.
343 My second point relates to subsection (3) of the clause which says:The standing orders may make different provision for different circumstances".That is computer nonsense from the draftsman's office which turns up whenever orders are in question. Of course, orders may make provision for different circumstances. That sort of provision is entirely unnecessary and I venture to suggest that it should be omitted in future.
The third matter concerns subsection (6) where at least two-thirds of the assembly members need to support a motion for change for it to be adopted. That kind of threshold was much debated when we discussed the referendum Bills. It bears out again the wisdom of the suggestion of the noble Lord, Lord Mackay, that all those kind of things ought to have been discussed before we ever established the referenda. It certainly seems reasonable to require a two-thirds majority for this change, or indeed any other change, because what is sought to be changed will often have been the result of accumulated wisdom and the reasons for having adopted it may well have been forgotten.
Chesterton described tradition in that sense as the democracy of the dead. I venture to think that this provision is valuable. We could well bear it in mind on other occasions when change—particularly violent constitutional change—from a state of affairs which has been long respected is sought.
§ Lord Mackay of Ardbrecknish
I would not have spoken on this matter but the noble and learned Lord, Lord Simon of Glaisdale, makes a telling point which I cannot resist following up; that is, that the assembly will need the assent of a controlled majority of two-thirds before it changes standing orders. As the noble and learned Lord, Lord Simon of Glaisdale, rightly pointed out, that is in great contrast to the Government's total inability to accept even the concept that there may be some qualified majority in the referendums we have had. The noble and learned Lord, Lord Simon of Glaisdale, does the Chamber a great service in bringing to our attention the need for vigilance as regards the majorities required for implementing great change.
The Bill before us was approved by the Welsh people on a narrow majority on a low poll. However, it was a huge poll in comparison with what happened subsequently in London. This Chamber and those in the other place will have to turn our attention to the whole question of majorities and turnouts in referendums. The noble and learned Lord has done us a service by pointing out that as regards the assembly we are discussing the Government accept the need for a qualified majority to change standing orders. I look forward to hearing the reply of the noble Lord, Lord Williams of Mostyn.
§ Lord Thomas of Gresford
Before the noble Lord sits down, is he aware that more people voted in the Welsh referendum than in the Northern Ireland referendum recently?
§ Lord Mackay of Ardbrecknish
The noble Lord makes my point for me as regards the need for qualified majorities and turnouts.
§ 3.15 p.m.
§ Lord Williams of Mostyn
The noble and learned Lord, Lord Simon of Glaisdale, commended the Government in respect of subsection (2). I am glad to join in that commendation. In respect of his further point, it is worth pondering. He said that subsection (3) comprises a useless, computer generated nonsense. I take his point about the two-thirds majority. However, circumstances differ. At the moment I cannot remember how many persons voted in the election for the present Leader of the Opposition.
§ Clause 47 agreed to.
§ Clause 48 [Equal treatment of English and Welsh languages]:
§ Lord Williams of Mostyn moved Amendment No. 112A:
§ Page 26, line 36, leave out ("of the Assembly").
The noble Lord said: Amendments Nos. 112A and 247B are drafting amendments designed to secure consistency of language throughout the Bill in the references to the assembly's standing orders. At one part they are described as,
standing orders of the assembly",
and elsewhere simply as "standing orders". We seek consistency. I am sure the Committee will endorse and applaud that. I beg to move.
§ On Question, amendment agreed to.
§ Clause 48, as amended, agreed to.
§ Clauses 49 to 51 agreed to.
§ Clause 52 [The Commissioners]:
§ [Amendment No. 113 not moved.]
§ Clause 52 agreed to.
§ Clause 53 [Presiding officer and deputy]:
§ Lord Elis-Thomas moved Amendment No. 114:
§ Page 28, line 5, at end insert—("( ) The presiding officer and deputy presiding officer shall have a duty to provide members of the Assembly with such information as they may from time to time require in accordance with standing orders.").
§ The noble Lord said: In the early hours of this morning we debated the whole issue of how assembly information is to be made available to all its members. The amendment seeks to lay a duty on the presiding officer and deputy presiding officer to provide information. I tabled the amendment because of the concern expressed in our earlier debates that there should not be a division between the newly created Cabinet, which we shall discuss later—the executive, 345 the government of Wales as set out in the Bill—and the other members of the assembly. My strongly held view may not be echoed by all Members of this Chamber or the other place, but I believe that we should not replicate the worst habits of Westminster in Cardiff Bay. We should adopt some of the better practices of this Chamber in terms of scrutiny in debate, but we should not adopt some of the practices of secrecy and lack of information and the frustration that is generated among Members not so much in this Chamber but certainly in another place who try to raise issues and obtain information but have difficulty in doing so.
§ The amendment to Clause 53 would lay a duty upon the presiding officer and deputy presiding officer to make relevant information available. Such a duty would be related to the standing orders. The standing orders would act as a guarantee that members would be able to participate actively in debate and in the flow of information. I beg to move.
§ Lord Roberts of Conwy
The noble Lord is quite right in his recollection of what occurred rather earlier this morning. This amendment is similar to the ones I moved on behalf of the noble Lord, Lord Crickhowell, although it lays greater stress on the objective of providing information for members of the assembly. Even so, it is clear that a division of staff will inevitably be required. We made that point earlier today.
The amendment lays the duty of the provision of information on the presiding officer, whereas our amendments proposed that the division should occur along staffing lines and that it should be decided by the permanent secretary of staff. Some staff would owe their first loyalty to the executive whereas other staff would owe their first loyalty to the assembly and its members. But we come back to the basic point that some division of staff is necessary. I agree with the thrust of the noble Lord's amendment; namely, that there must be a duty defined in standing orders to ensure that assemblymen are provided with a proper flow of information.
§ Lord Williams of Mostyn
Like the noble Lord, Lord Roberts of Conwy, I am in agreement with the thrust of what has been said. We are not entirely clear as to what the drafting of this amendment is intended to achieve. I understand perfectly the point of substance behind the amendment. I take it to be the concern that all members of the assembly, not just members of the executive committee, should have proper support to enable them to do their work properly—and by definition, they need ready and efficient access to information. Noble Lords may have noted that the advisory group attaches a good deal of importance to that question in paragraphs 5.6 to 5.13 of its consultation paper. It refers in particular to effective central library facilities, information gained through use of information technology, and members' own support staff where appropriate.
There is a particular view in the consultation paper thatthere should be regular factual briefings by senior officials of the assembly conducted under agreed arrangements".346 I believe that takes up the point made by the noble Lord, Lord Roberts. If that suggestion comes forward as a recommendation, I do not believe that the Secretary of State will have any difficulty with it. We want an inclusive assembly, with everyone prepared to make a positive contribution—that is, on the basis of a full understanding and full information. Therefore, the provision of information and other means of support for members is being carefully considered now. I hope that the noble Lord finds that a sufficient response for his present purpose. As I said, the amendment is not perfect; however, the noble Lord's point is a very sound one.
§ Lord Elis-Thomas
My Lords, I am grateful to the Minister for pointing out my imperfections but also my spiritual intentions. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 53 agreed to.
§ Clause 54 [Assembly First Secretary and Assembly Secretaries]:
§ The Chairman of Committees (Lord Boston of Faversham)
In calling Amendment No. 114A, I should point out to the Committee that, if it is agreed to, I cannot call Amendment No. 115.
§ Lord Roberts of Conwy moved Amendment No. 114A:
§ Page 28, line 7, leave out from ("Assembly") to end of line and insert ("Premier or Y Pen Weinidog.").
§ The noble Lord said: The amendments in this series all hang together. They are designed to convert the executive into a Cabinet, with a premier at its head instead of a First Secretary; to change Secretaries into Ministers; and to convert the subject committees into Select Committees. On the face of it, those are all titular changes; however, I believe that they also carry further the change of style implicit in the change from local authority to Cabinet-style government. We pressed for that change, as the noble Lord, Lord Williams of Mostyn, acknowledged more than once, in order to ensure decisive, effective and accountable government, which would not have emerged from an all-party subject committee system as originally proposed.
§ The Government have accepted the validity of that argument in Wales, as they appear to have done in Scotland from the start. I am sure they are right to have done so. I say that with some 15 years' experience behind me as a Minister in the Welsh Office. We are appreciative of the change that the Government have made.
§ Our first amendment, Amendment No. 114A, concerning the First Secretary, proposes that he be called "Premier" or, in Welsh, "Pen Weinidog". As Welsh speakers in the Chamber will readily acknowledge, that differentiates him or her from a Prif Weinidog, which is the title reserved for the Prime Minister. The title "Premier" is currently in use in the Canadian provincial legislatures and also in the Australian provincial legislatures. It therefore seems to us reasonable that it should be the title in use in the assembly. I hope that that proves generally acceptable to the Government, as I am sure it will to Welsh speakers and non-Welsh speakers alike.347
§ The Government, having accepted the change of style to a Cabinet system, cannot well argue that should not be recognised in a change of title for the executive—except that the ultimate decision is for the assembly itself. Unlike the Scotland Bill, which transfers power to the executive, this Bill transfers power to the assembly. So I recognise the difficulty that the Government face. I believe that the Secretary of State ought to have said—
§ Lord Geraint
Perhaps I may ask the noble Lord one question. Would it not be better for the people of Wales to have a Prime Minister, a Prif Weinidog? Can he explain why he is not in favour of that proposal?
§ Lord Roberts of Conwy
Simply because I do not want there to be any confusion. "Premier" is a totally different title from that of Prime Minister. The noble Lord will know that there could be some difficulty with the translation of both pieces of nomenclature. We translate "Prime Minister" as "Prif Weinidog". I suggest that we translate a "Premier" as a "Pen Weinidog". Therefore there is a difference in the terminology which I hope is found to be acceptable.
§ Lord Hooson
I wonder whether the noble Lord has contemplated the fact that the Premier of Wales might be known as "Pen-Wen"!
§ Lord Roberts of Conwy
I doubt it. It is certainly not an abbreviation that occurs to me. He might be know as a "Pen", which means "chief", and is a possible abbreviation. However, I doubt that he would be known by any other title.
I dare say that the Committee would like to consider these proposals, as would others outside this House. Certainly they are acceptable to me, and I hope acceptable to others too.
I believe that the Secretary of State for Wales has said that he will approve only standing orders which establish a Cabinet-style system, and that the assembly will not therefore have much choice in the matter—initially at any rate, until it is perhaps able to change standing orders with a two-thirds majority.
The change of titles that we propose might be helpful to the Secretary of State in establishing his Cabinet-style government. I do not intend to argue at any length as to why assembly Secretaries should be called Ministers, except to say simply that they replace Ministers in the United Kingdom Government. At present there are three Ministers in the Welsh Office: the Secretary of State and two Under-Secretaries of State. At least their functions are being transferred to the assembly, and I see no reason why at least their ministerial titles should not go along as well. They are currently called Secretaries of State of various kinds. But a ministerial title is commonly in use and commonly applies to different kinds of Ministers. Therefore I think that the ministerial title is more appropriate to cabinet government and the nomenclature proposed has a coherence and familiarity which should make it both understandable and acceptable to the majority of people.
348 There is no doubt that the changed, Cabinet-style government will affect the role of the subject committees. Our view is that they will be small enough to adopt the approach of a Select Committee rather than a Standing Committee, where set speeches are the order of the day. Most of us who have had experience of both kinds of committee would generally prefer the Select Committee as the more workmanlike and effective option. The main function of the assembly committees is to hold Ministers and others to account. Therefore, again, I think it will be agreed that the Select Committee mode of procedure is to be preferred.
§ 3.30 p.m.
§ The Chairman of Committees
I should point out that, as Amendment No. 115A is also being spoken to, if that amendment is agreed to I cannot call Amendment No. 116.
§ Lord Thomas of Gresford
We are most grateful to the noble Lord, Lord Roberts of Conwy, for raising the interesting issue of nomenclature, on which I am sure we shall not agree among ourselves in this Committee. Our view from these Benches is that it should be for the assembly to decide in due course what to call their Ministers. The assembly, the Welsh press and the Welsh people may well come up with different names for the person who holds that position. We have an official in the Westminster Parliament who is known officially as the First Lord of the Treasury. He is customarily called the Prime Minister, the press call him the PM and the people call him by a variety of names, depending upon who is the holder of the office at any particular time.
This is not a matter which we believe should be incorporated in primary legislation, fixed and immutable, as is proposed by the amendment. We hope that the Government will give an assurance that, whatever there may be in the Bill, the people of Wales and the members of the assembly will be able to call the chief executive or prime minister whatever they think is fitting and suitable. We would prefer a single Welsh name which would become identified with the holder of that office, just as the Taoiseach has become identified with the holder of the office of Prime Minister of the Republic of Ireland. When the word "Taoiseach" is used, there is no need to describe which country he comes from. We would hope that a term such as that would become common usage, part of the accepted vocabulary throughout the United Kingdom, so that no more need be said on that topic.
§ Baroness Carnegy of Lour
I have not intervened before on this Bill, but I am listening to this discussion with great interest because I think it also relates to the Scotland Bill, which we shall be discussing shortly and in which I shall take particular interest.
I think that what the noble Lord, Lord Thomas, said from the Liberal Democrat Front Bench is a mistake. There are many things which the Welsh assembly should be left to decide for itself, as should the Scots parliament. But anything which might lead people into misunderstanding the relationship of the Welsh assembly or the Scots parliament with the Westminster 349 Parliament would be a great mistake. This question should be sorted out at Westminster before the Bill becomes law.
I like the idea promulgated in the amendment. I think that the word "premier" could become very acceptable in both countries. It would mean that there would be no confusion between Westminster and the subsidiary parliaments. At the same time, it sounds a bit less un-British than "First Secretary", which is a rather strange concept to introduce into our constitution. The name should come naturally but should make a differentiation between the subsidiary parliaments and the Westminster Parliament. I hope that the Minister will accept the amendment or at least look at it. It is very interesting and could make a big difference to the feel that there will be about these two parliaments among the peoples on behalf of whom they will operate.
§ Lord Elis-Thomas
I do not want to get into a linguistic argument in the Committee, but I think that I might. I understand the motivation behind these amendments, but I believe it will lead to a linguistic and political morass. Here I beg to differ—if that is permitted—with the noble Lord, Lord Thomas. One tywysog in Wales is enough, and that person is a Member of this House, the Prince of Wales. Members of the Committee who are skilled in the Celtic languages will know that "taoiseach" is cognate with "tywysog", and that is the Prince, and therefore "tywysog" would not be an appropriate translation.
I have just taken a short leave of absence to check the Welsh Academy dictionary in the Library and I find that my former academic colleagues, Dr. Bruce Griffiths and Dr. Dafydd Glyn Jones, both translate "premier" as "prif weinidog". There is no mention of pen weinidog, pen bandit or any other pen in that dictionary. I am sorry, that is a bilingual joke. Pen bandit is the head bandit. I could go on. There is a public house not far from where I live occasionally in Caernarfon at Groeslon called Pen Nionyn, which could be roughly translated as "Onionhead". The possibilities are endless for the great Welsh public to construe a pen weinidog in all kinds of ways.
I should also like to speak against the notion, suggested by the noble Lord, Lord Thomas, that we should have names only in the Welsh language. I keep stressing this point, and it is becoming an obsession, as it was very early this morning. This is a bilingual institution. Everyone in Wales should have two names. Why should we have one when we can have two? I believe it is important that there should be a direct translation of each title, for each job, for each position, for each role, as there should be a clear, concise and direct translation between Welsh and English and English and Welsh of every other term that will be used in the work of the assembly.
I notice that in their advice the national advisory group has proposed the name trefnydd for the business manager, and I regret that that is a complete confusion. A trefnydd is clearly an organiser.
That brings me to the use of the word "ysgrifennydd/secretary". Ysgrifennydd/secretary has a long tradition in Wales in both languages. It is a very 350 honourable and honorary role to play. It has certain connotations, of which the noble Baroness reminded us, with regimes in central and eastern Europe which are no longer with us. Therefore, following the collapse of so-called, actually existing, socialism, why should we not accept titles and reinvigorate them with democratic meaning? The "secretary" in Wales has been the secretary of the chapel and the secretary of the eisteddfod. I see in his place the noble Lord, Lord Geraint, the greatest secretary of a local eisteddfod who ever sat in this Chamber or anywhere else. What is wrong with that title? It reverberates with democracy, consensus and understanding. I know that the title "secretary" emerged from the initial idea of a committee, which would then have a committee secretary.
That brings me to my final point, which relates to the structure of the committees. These are not select committees, neither are they subject committees. They are a combination of both and something else; they are a pwyllgor, a special kind of committee which will combine the roles of scrutiny, of legislating in certain aspects, of ensuring accountability, which we shall come to later in the Bill, as part of the duty laid upon secretaries to be accountable to the first secretary and to the assembly. I rejoice in these titles of ysgrifennydd and secretary as they stand in the Bill and strongly urge the noble Lord, Lord Williams of Mostyn, to resist any other linguistic arguments which may appear, from whatever quarter of the Chamber, to prevent us celebrating our bilingualism in "secretary/ysgrifennydd".
§ Lord Beloff
Without going into the linguistic intricacies of a language that I do not know, I would point out that there is some danger in the use of the word "premier", in the sense that the analogies which have been called to our attention with Canadian provinces or Australian states refer to the chief executive in bodies which have a legislative capacity. Those are bodies which pass primary legislation. As I understand it, the Welsh assembly is not a body of that kind. If a chief executive were to be called "premier", it might cause confusion even beyond the confusion that already exists.
§ Lord Prys-Davies
I suggest that we should not pretend that we can change the character of an institution by changing nomenclature.
It seems rather ironic to me that, while the official Opposition have been keen to weaken, fetter or restrict the powers of the assembly, they are keen this afternoon to use terminology which seems to have a higher order of significance than what is used in the Bill. But why stop at "Minister"? Why not "Prime Minister"? Why not "Speaker"? Or indeed why not "Officer" or "Governor" to represent the ceremonial aspects of the Crown in Wales?
The National Assembly of Wales will be a completely new institution. It is described in the White Paper as being a "unique" institution; a "forum" for the Welsh nation. I suggest that we should have the self-confidence of hunan-barch, to use the terms which are new and 351 which are appropriate to the new institution. I hope that the Government will think long and hard before they accept these beguiling amendments.
§ Lord Dixon-Smith
I hesitate to rise, particularly since I have a marginal difference of opinion with my noble friend sitting in front of me. As a mere Englishman I find it passing strange that we should wish to adopt a French word for the English title of a Welsh office.
§ Lord Williams of Mostyn
First, I congratulate the noble Lord, Lord Boston of Faversham, on his perfect pronunciation of Y Pen Weinidog. The noble Lord, Lord Elis-Thomas, said that the possibilities are endless. I thought that myself at one o'clock this morning! Certainly the debate was endless, as the noble Lord, Lord Mackay of Ardbrecknish, points out.
I was surprised that the noble Lord, Lord Beloff, did not profess a knowledge of the Welsh language because I had always thought he came from a very old Welsh family—the ap Beloffs. Plainly I was wrong.
Various titles have been offered. When the noble Lord, Lord Elis-Thomas, offered "trefnydd", I thought that might be disagreeably translated as "dictator", but he would not have that. It is suggested that "First Minister" is too redolent of our dear former friends in the Kremlin. Floating into my mind—I felt I should not say it—was "Lord Protector". Now that I have said it, perhaps the Secretary of State will want to be Lord Protector.
One must pause to wonder about the importance of specific titles. In Clause 57 of the Bill we have said that there shall be a first secretary to chair the assembly and assembly secretaries. We set out in Clause 58 subject committees which, as the noble Lord, Lord Elis-Thomas, points out, are not to be subject select committees. When it comes to an "assembly cabinet", we have left it to the assembly, by standing orders, to come to its own conclusion about nomenclature.
"Premier" is a foreign word. If I remember rightly, it came into popular being in this country after the last war when Mr. Churchill—later Sir Winston—commonly referred to himself as that and was popularly referred to as that. But there is not to be a premier or prime minister in the constitutional arrangements proposed for Wales. I believe the noble Baroness is right in saying that one wants to avoid titles which may bring about confusion.
We feel that the titles we have proposed in the Bill and the latitude that we rightly offered to the assembly by virtue of standing orders strike about the right balance. I endorse what my noble friend Lord Prys-Davies said. If the assembly wishes to develop an "assembly cabinet" system, we hope that it will work. The noble Lord, Lord Roberts, again very generously, said that we listened to the arguments, which we thought powerful, put forward by the noble Lord and his colleagues and allowed the assembly to go its own way.
If the assembly wants to alter the name of the cabinet or the system, it will be able to do so on the basis that a two-thirds majority of the members voting on the 352 motion to support the amendments will be required. We believe that we have the right balance—which will never be perfect—between stability of arrangements and a degree of decent flexibility to respond to new circumstances in a creature which, after all, has never existed, nor anything like it, in the constitutional arrangements of our country.
This amendment is grouped with a large number of other amendments, but the principle is the same and I do not propose to pre-reply to what may be said in every case. We want the arrangements to work. We have new titles for new arrangements. It would be misleading. It is true that one can do a panoramic sweep of provincial legislatures, state legislatures and national legislatures throughout the world and pluck titles from Canada, New Zealand, Scandinavia or from the Länder in Germany. I am not sure that that is anything other than an added exercise.
I respectfully suggest to the Committee that we have the balance about right. If that is so, it may be helpful to move on to matters of rather more substance and worth, recognising, as I do, that the possibilities, alas, are endless.
§ 3.45 p.m.
§ Lord Roberts of Conwy
I am grateful to the Minister for his reply and for the great variety of comments that we had from different parts of the Chamber. One thing is clear. There are titles in the Bill. We cannot simply leave it to the assembly because those titles are already in the Bill. It may be that the assembly will wish to change them in due course and then it will express its views.
Our main aim in bringing forward these amendments was to follow through the Government's conversion to the Cabinet-style system. It seemed to us appropriate that, following that conversion, we should resort to Cabinet-style titling so that no one would be unfamiliar with the members of the cabinet executive.
The noble Lord, Lord Beloff, made a point which occurred to me; that is, that the difference between the assembly and Canadian or Australian counterparts is that for the most part those are legislative assemblies whereas the Welsh assembly is simply a body with secondary legislative powers.
I was not intending to beguile the Committee in any way by introducing the amendments. With all due respect, our debate has been valuable in that it has cleared the air and shown that there is a degree of satisfaction with the current titles employed in the Bill. I was not aware of that until now. I therefore beg leave to withdraw the amendment.
§ The Chairman of Committees
I am grateful to the noble Lord, Lord Williams of Mostyn, and to the noble Lord, Lord Roberts of Conwy. Is it your Lordships' pleasure that the amendment be withdrawn?
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 115 to 119 not moved.]353
§ Lord Williams of Mostyn moved Amendment No. 11 9A:
§ The noble Lord said: Amendment No. 119A is grouped with Amendment No. 254A. Amendment No. 119A adds a new subsection to Clause 54, making it plain that members of the executive committee should be regarded as Crown servants for the purpose of the Official Secrets Act 1989. If the Committee was prepared to accept that amendment, then in due time I would invite the Committee to conclude that Clause 81 should not stand part of the Bill.
§ In moving the amendment I speak also to Amendment No. 254A, which includes within the definition of "government contractor", for the purposes of the 1989 Act, someone who provides goods and services to the assembly. There has been a good deal of debate, in another place and publicly, about how the Official Secrets Act ought to relate to the work of the assembly. We undertook to give further consideration to what were serious issues. Amendment No. 119A comes as the child of that further consideration.
§ We thought originally that all members of the assembly, as we see in what is presently Clause 81, ought to be covered by the Official Secrets Act 1989. The underlying reason for that was that there will be a transfer of ministerial functions from the Secretary of State to the assembly, as the noble Lord, Lord Roberts of Conwy, rightly said. The Secretary of State is presently covered by the 1989 Act and we thought at that stage that so too should members of the assembly.
§ We have listened carefully to the arguments which were deployed at some persuasive length in another place. It was a valid point that if we adhered to our first position there might have been constraints on debate in the assembly in a way which was wrong. Some members of the assembly need to be covered by the Act, otherwise civil servants lawfully in possession of protected information would be able to make it available to assembly members only by imposing explicit conditions of confidentiality. That would not chime in with the relationship between civil servants and leading political figures.
§ Having thought about it, we consider the original proposal went too far; it was too draconian. The criticisms made by various public figures and in another place were properly based criticisms. This amendment is brought forward to strike a better balance between the proper maintenance of respectable confidentiality and free debate in the assembly.
§ We are assisted in this work by virtue of the shift that we have come to towards a Cabinet or quasi-Cabinet system, which I mentioned yesterday and which has been referred to by the noble Lord, Lord Roberts of Conwy, today. We are adjusting the applicability of the Official Secrets Act to those in the assembly who will exercise what I crudely call the Front Bench functions. If the Committee accepts this amendment it will improve the Bill.354
§ The nature of the devolved functions and the categories of information protected by the Act of 1989—security, intelligence, defence, international relations, crime, special investigation powers—means in practice that very few official secrets issues are likely to arise in the working context of the assembly. We believe that leading members of the assembly should be covered by the Act to permit a proper flow of information between civil servants and those with executive responsibilities.
§ Amendment No. 254A is perhaps of lesser importance. The effect of the amendment would be simple. Under the 1989 Act government contractors are placed under obligations analogous with those of Crown servants; that is, that they must not make unauthorised disclosure of information in protected categories. The definition of "government contractor" is broadly someone who supplies goods and services for the purpose of a Minister. Amendment No. 254A places contractors who provide goods and services to the assembly in the same position as those providing goods and services to a Minister; that is, protected information may not be revealed. I hope that explanation commends itself to the Committee.
§ Lord Mackay of Ardbrecknish
We, as the official Opposition, welcome these amendments. It seemed to us almost unbelievable that every member of the assembly, even members of the opposition—and I trust there will be an opposition and that it will not actually be like a new-born Supreme Soviet where everybody will be consensually on the Government's side—would be bound by the Official Secrets Act. That would be a really amazing position. I can just imagine that suggestion being made to some Members in the other place—even some on the Government's own side. They would be horrified to find themselves, the moment they became Members of Parliament, bound by the Official Secrets Act. The poor old members of the Welsh assembly would have been in a worse position than some Members of your Lordships' House and Members of the other place who are government Ministers. There may be some who are still, collectively and for life, bound by the Official Secrets Act.
This is a sensible amendment but in some ways it links back to the series of amendments we have just had about names and, more importantly, to the amendments we discussed yesterday evening about the concordats and who the concordats were between. One of the two fundamental differences between the Welsh Bill and the Scotland Bill is that the power in this Bill is devolved to the assembly as a collective whereas the power in the Scotland Bill has been devolved to the executive of the Scottish Parliament. That is an enormous difference and serious consequences flow from that. I do not want to rehearse the argument about concordats but it is a similar, parallel argument to the one about the Official Secrets Act. The powers of the Secretary of State are devolved to the assembly and agreements which would normally be between governments or ministers have to be between the Government here, departments of state here at Westminster, and the assembly.
355 Equally, that led the Government to the view that all members of the assembly should sign up to the Official Secrets Act. I am pleased that the Government have accepted the arguments of my colleagues in another place that this was a ridiculous proposition that could not be defended in public. I therefore welcome the amendment.
I hope that the Government will start to think through some of the consequences of the principle which underlies this; namely, that the Secretary of State's powers have gone to the assembly. It would be a much clearer transfer of powers if they were to go to the executive of the assembly. Then things like concordats and names would be very much simpler. Having said that, one swallow in this case does make a little bit of a summer and I welcome the amendment.
The Earl of Balfour
With very great respect to the noble Lord, Lord Williams of Mostyn, I was somewhat surprised that with this amendment he did not also deal with Clause 81. I am very satisfied with the explanation that Clause 81 goes far too far, but could I ask the noble Minister what is the position of a presiding officer in, for example, Clause 76?
Also, while I am on my feet, I should add to my question of last night on the Motion that Clause 36 stand part of the Bill as regards inquiries. There is the provision for a person to be required to take an oath under Clause 76 when required to attend proceedings of the assembly. However, Clause 36 deals with an inquiry, which I imagine could be held anywhere in Wales, as such inquiries can be held anywhere in Scotland. In England I think such inquiries are always held in this Palace of Westminster.
Going back to Amendments Nos. 119A and 254A, including, perhaps, Clause 81, I ask the noble Lord, Lord Williams, to pass on to his Scottish colleagues that there is at present no such provision about secrets in the Scottish Bill. I hope he agrees with me in that I think there should be.
§ Lord Williams of Mostyn
Perhaps I may deal with those latter points first. I told the noble Earl yesterday that his questions on Clause 76 would be researched and I undertook to write to him as soon as possible. I indicated that it would be unlikely that the detailed answers would be available for him today.
I take the noble Earl's point on the Scottish question and I am able to tell him that if amendments to the Scotland Bill on Report in the Commons are accepted, members of the Scottish executive will be covered by the Official Secrets Act. I think he has correctly identified a gap which it is the Government's present intention to fill.
I was very pleased with the generous response of the noble Lord, Lord Mackay, that we have listened carefully, as I am always advised to do by the noble and learned Lord, Lord Simon of Glaisdale, and have demonstrated the flexibility which is the hallmark of the Government in your Lordships' House.
§ On Question, amendment agreed to.356
§ Clause 54, as amended, agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.