HL Deb 03 June 1998 vol 590 cc387-97

(" . The Assembly shall establish a committee with responsibility relating to the scrutiny of European Community legislation and communications from the European Commission in accordance with standing orders.").

The noble Lord said: In view of the last remarks of the noble Lord, Lord Mackay of Ardbrecknish, I am tempted to say that we are all devolutionists now. In that case, he is very welcome to join the club. His noble friend has been there for a long time.

Amendment No. 156 relates to something that we debated last night around midnight. I see that the Chief Whip has joined us and I would obviously not wish to repeat anything that we said last night. It was a useful debate. As often happens in these matters, important issues are discussed at unfortunate hours. I hope that that will not happen in the assembly. The purpose of the amendment is to ensure that the assembly establishes a committee to scrutinise European Community legislation and communications from the European Commission. It is based on the positive work of both Houses of Parliament in their own European Select Committees and scrutiny committees.

I have been privileged to be a member of Sub-Committee C of the European Communities Committee, under the strong chairpersonship of the noble Baroness, Lady Hilton, which considers all aspects of Community legislation in the area of the environment, public health and consumer protection. The European Communities Committee of this House has a very good reputation throughout the European Union. I am always pleasantly surprised to see the extent to which our reports are read throughout the European Union. Indeed, they are almost obligatoire in the Commission in terms of our analysis of the implementation of Community policy.

I hope that the national assembly in Cardiff can make a similar contribution within its area of devolved powers and that it will become a serious European partner in the scrutiny of legislation, in the understanding of communications from the Commission and in the expressing of views. That links up to something at which perhaps we did not look in enough detail last night. I refer to the position of the assembly in relation to the successor body of the Wales European Centre in Brussels and in relation to having close links with MEPs within the European Parliament and with the Committee of the Regions. All those networks to which the assembly will relate should come together in the activities of the scrutiny committee of European Community legislation.

I suspect that the Minister will tell me that it is not necessary to have this provision on the face of the Bill. I think it would be helpful to have it on the face of the Bill in order to indicate clearly that the scrutiny of European legislation is regarded as one of the major functions of this new body. I beg to move.

Lord Mackay of Ardbrecknish

At the risk of embarrassing the noble Lord, Lord Elis-Thomas, perhaps I may say that I think he has a point. That seems to be my role this afternoon—coming in after the noble Lord and saying that I think that some of his arguments have validity.

As the noble Lord said, this debate is not unrelated to the one we had late last night, in which specifically I was looking at agriculture and fisheries because of their importance in Wales and because of the fact that they are two of the most common policies on the European scene. Here we are dealing with the relationship between the Welsh assembly and the material that flows out of the European Community—very considerable amounts of material these days!

I presume—and I am going to go on this assumption—that the noble Lord's new clause relates to those parts of European legislation which would come inside the competence of the Welsh assembly. That therefore raises matters of considerable importance for the assembly. The difficulty I see is that devolved Welsh affairs will no longer be the concern of this Parliament. That is the whole point of devolution. So, for example, if some documents come and they are examined by the European Communities committees of your Lordships' House, what role will your Lordships' committees be able to play in scrutinising European legislation concerning Wales? Will your Lordships' committees have to pass by the Welsh parts, or will your Lordships be able to look into matters and to call witnesses on the Welsh parts of any legislation or on the Welsh impact of any legislation?

I am sure that happens at the moment. It certainly did when I served on one of the sub-committees of the European Communities Committee. Would it still be within the powers of this House to discuss devolved Welsh issues in the context of European issues? Similarly, if Members of another place were looking at a piece of draft legislation coming from Europe, would they be allowed to explore the consequences for Wales? If they were not, clearly no elected person from Wales would be scrutinising it unless the assembly did. If they were allowed to scrutinise it, that would be fine; but equally I do not see why the assembly members should somehow be blocked out. I hope that they will have an important part to play.

I suspect that the Minister will say that standing orders will allow the assembly to set up such a committee if it so wishes. I am sure it will. The trouble with being a Minister for some time is that you begin to know what the answers are before you have been asked the question. I think the noble Lord, Lord Elis-Thomas, makes an important point. We would be signalling to the assembly that these matters are hugely important and that far too many of the parliaments of Europe do not pay nearly enough attention to the proposals coming from Brussels.

It is often said that of all the parliamentary bodies in Europe, your Lordships' House does more on the scrutiny of European matters. That is to the credit of your Lordships' House but it is not to the credit of the other bodies. I therefore think that the Welsh assembly should have an important role in scrutinising legislation coming from Brussels in order to see how it affects the Welsh position and then to make its observations known. I am not sure to whom it would make its observations known. That opens up the whole debate of last night. I presume that the assembly makes its observations known to the UK Government; or does it make them known to Brussels; or does it make them known to both? It certainly will have to make them known to the UK Government because they are the only people who will actually be able to do anything in the Council of Ministers about these matters.

This is an important issue. Even if the Minister tells us that the amendment is not necessary and that he is sure that the assembly will set up such a committee, I hope he will give an indication that in the Government's view such a committee ought to be set up, even if such a provision is not on the face of the Bill.

6.15 p.m.

Earl Russell

I am glad that the noble Lord, Lord Elis-Thomas, has introduced the amendment. Five years ago I had the privilege of listening to Jordoi Pujol of Catalonia discussing the relations between Catalonia and the EU. The relations of the EU with the separate nationalities that make up the states of Europe is an extremely interesting field of development which I hope will continue in Wales.

There is just one word in the amendment which gives me cause for concern—that is the word "shall"—for reasons outlined by the Minister on Amendment No. 154A. This is essentially a matter of the assembly's own procedure and regulation of its own business. Any representative assembly should be in charge of settling its own proceedings. It is not good to have those proceedings settled by rules imposed by another place. Nor indeed is it good to have them laid down in statute in tablets of stone.

Some of us may remember, for example, the clause in the Defamation Bill in the previous Parliament which caused considerable confusion by attempting to regulate procedure by statute. It really is not wise. Even in dealing with the pre-Union parliament of Ireland, which was a parliament regarded on this side of the water as somewhat subordinate, attempts were not made by Westminster to regulate the proceedings of that parliament by statute.

The assembly may well wish to set up such a committee. It may wish, in the light of the limited number of people to staff committees, to address the same objective by another route. It would be a failure in respect for the Welsh assembly for us to lay down in statute in this House how the assembly shall conduct its own proceedings. So if the noble Lord wishes to return to this matter at another stage, I hope he may employ the word "may" instead of the word "shall".

Lord Beloff

It gives me enormous pleasure to be able to support the amendment of the noble Lord, Lord Elis-Thomas. I do so from a state of ignorance since for many years, for reasons which will be obvious to your Lordships' House, I have been kept off all the scrutiny committees of the House. So I am not fully acquainted with the current state of the documents that come. But my understanding is that the bulk of European legislation, if I may call it that, is of a general character. It says that all sheep shall have five legs, or whatever it may be. Normally, as I understand it, there is no distinction made between one country and another so one would not expect even a reference to the United Kingdom to figure in a regulation or a directive from the Commission, still less a reference to a part of it; namely, Wales. At present the documents themselves obviously come to the United Kingdom Government. We do not yet have devolution in either England or Scotland.

How are those documents to come before the Welsh assembly? Will it be the responsibility of the relevant ministry in Whitehall to make sure that a copy is sent by pigeon post or other form of communication, directly to the Welsh assembly and for it to be put before the committee? As I understand it, the documents do not lend themselves to consideration by subordinate bodies. It would be perfectly proper and natural, for the reasons that have been given, for the Welsh assembly to want to look at documents which concern Wales, but they will not be about Wales. For that reason, there seems to be a problem. However, that certainly does not prevent me from supporting the amendment because if Wales is to have an assembly it should confront the trouble from Europe along with the rest of us.

Lord Kenyon

I, too, welcome this amendment tabled by the noble Lord, Lord Elis-Thomas. I remind the Committee of the existence of the Committee of the Regions. That body deals with regional matters. I was a member of that committee for four years when it was set up under the Maastricht Treaty. As a member of a local authority only in Wales, I found that there was very little consultation. There was a little bit of informal consultation between the Association of Welsh Councils and the Council of Welsh Districts.

But when local government in Wales was reorganised the unitary authorities and the Welsh Local Government Association decided that they did not wish to consult with the members of the Committee of the Regions, so each member of that committee was out on his own. I am delighted to see that under this Bill the membership of the Committee of the Regions will be selected by the assembly. I sincerely hope that it will discuss the opinions that come from the Committee of the Regions. I can assure the Committee that an awful lot of bumpf comes from that organisation and, I presume, also from the Economic and Social Committee to which appointments will also be made. There will be the opportunity to discuss these matters in much greater detail than we have had until now.

Lord Prys-Davies

Before my noble friend replies to the debate, I would like to take further the point made by the noble Lord, Lord Beloff. It is important that there is a duty on the lead department in London to provide the Welsh executive with prompt information as regards such Community obligations which the United Kingdom is contemplating making or approving and which have a direct or indirect effect on the devolved functions of the Welsh assembly. It is important also that it consults the executive on such obligations and provides it with the opportunity to take part in the negotiations. Otherwise, when the order or directive arrives it is then late in the day for the Welsh assembly to influence the contents of a directive. Therefore, I believe that the noble Lord has raised an important issue.

Lord Williams of Mostyn

It is indeed an important issue. As the noble Earl, Lord Russell, indicated, there is no doubt at all that the assembly, in the way that it chooses, will be obliged to give careful scrutiny to draft legislation and proposals for policy development. But that is the important proviso: the way in which it decides.

I take up a particular point made by the noble Lord, Lord Mackay of Ardbrecknish. I say quite firmly that the Government would anticipate, with every confidence, that careful scrutiny would be given. It might be that the assembly would want to establish a committee with specific responsibility for European matters. Perfectly sensibly, it might take an alternative view that each of the subject areas, for which assembly secretaries will be responsible, would wish subject committees to look at the legislation and policy developments in that particular area. That is an issue for the assembly to decide as matters develop.

I am grateful if the purpose of the amendment of the noble Lord, Lord Elis-Thomas, is to flag up a point because it is well received. There is nothing at all to stop scrutiny on a UK-wide basis by parliamentary committees at Westminster. The assembly is to enable a separate process of Welsh scrutiny to take place as a supplementary and distinct process. It will be for the Foreign Office, as at present—which receives the appropriate documentation to which the noble Lord, Lord Beloff, referred—to distribute it to those who have an appropriate interest. We anticipate that there will be no difficulty at all about that happening to the Welsh assembly in the future. It will not necessarily be every piece of European policy development in every context or every piece of draft European legislation that is of interest to the assembly or appropriate for scrutiny.

But that is the point of devolution. People are given the powers and opportunities to carry out the scrutiny processes in two ways. The first is what kind of mechanism is used and, secondly, what sort of policy and draft European legislation do they wish to scrutinise. I am most grateful to the noble Lord who indicated that perhaps in the past there has been insufficient opportunity for scrutiny and that this is the opportunity for the Welsh assembly in the future to play its full part.

It seems to me that there are no real difficulties here. Parliament at Westminster can continue the scrutiny as it thinks appropriate and the Welsh assembly, in whatever mechanism it chooses, can also carry out the scrutiny. I am grateful to the noble Lord for raising this question. It is useful to have it ventilated but we do not believe that this over-rigid prescription is suitable for the way ahead.

Lord Elis-Thomas

I am grateful to the noble Lord for his response. I have been accused of many things. Now I am an over-rigid prescriber. I am very pleased at the cross-party support which this amendment has received. In particular I would like to thank the noble Lord, Lord Kenyon, for giving us the benefit of his experience on the Committee of the Regions. That reminds us that that committee itself by treaty is a consultee within the procedures of the European Union. Therefore, if for any reason documentation is lost between the FCO and the assembly, I am certain that the electronic copy of the Committee of the Regions can appear instantaneously in Cardiff Bay. All kinds of networks operate.

As we have done this evening, it is important to flag up the assembly to take up seriously European responsibilities. I was pleased also to have the support of the noble Lord, Lord Beloff, although I believe that it tended to peter out towards the end of his speech, if I followed him correctly. However, I do not criticise him for that.

I do not understand the distinction between European matters which are about Wales and those which concern Wales. Clearly, all European Union matters, particularly in the field so beloved by the noble Lord opposite and myself—namely, agriculture, fisheries and the environment—are of deep concern to Wales as an environmental landmass with agricultural problems. I thank the noble Earl, Lord Russell, and particularly for mentioning a mutual friend of many of us in this House, Jordoi Pujol. I may return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Members of scrutiny committee etc.]:

[Amendments Nos. 157 to 159 not moved.]

6.30 p.m.

The Deputy Chairman of Committees (Baroness Turner of Camden)

We now come to Amendment No. 160. I call the noble Lord, Lord Williams of Mostyn.

Lord Simon of Glaisdale

Hear, hear!

Lord Williams of Mostyn moved Amendment No. 160:

Page 31, line 20, at beginning insert ("But").

The noble Lord said: Perhaps I should quit while I am ahead! This amendment seeks to insert the word "But"—

Lord Roberts of Conwy

Is it a conjunctive or a disjunctive "But"?

Lord Williams of Mostyn

I think that I shall be entitled to an epitaph on my tombstone saying that I was a man who introduced an amendment containing only the word "But".

This is a drafting amendment to clarify a possible ambiguity. As I say those words, I feel a chill upon my heart because I know that one Member of this Committee will say that, far from providing clarification, the amendment introduces such constitutional problems as to render the whole of the Bill unworkable. The possible ambiguity is as to the relationship between subsections (5) and (6) of Clause 60. The amendment is intended to make it clear that subsection (6) provides an exception to the general principle in subsection (5), which is that the scrutiny committee may not delegate its function of making reports to the assembly on draft assembly orders. I beg to move.

Lord Thomas of Gresford

I can think of no one more appropriate to introduce an amendment containing only the word "But" or to have that mentioned on his tombstone than the noble Lord who lived and practised for so long in Swansea where that word has a particular meaning. Indeed, quite a large number of people may gather around the tombstone and think that he was their "but".

On Question, amendment agreed to.

On Question, Whether Clause 60, as amended, shall stand part of the Bill?

Lord Simon of Glaisdale

Perhaps I may make two points on this Clause. The first relates to subsection (7) which defines, the largest party in the Assembly as, the party (if any) which is represented by more Assembly members than any other single party". What else could it be? This is what the noble Lord, Lord Strabolgi, once described as Gertrude Stein drafting: the largest party is the largest party is the largest party. If there is to be such a definition, should it not at least contemplate the fact that there might be two large parties, equally numbered? Should not that be cleared up?

My other point is general to this Bill. It relates to subsection (5) which deals with delegation. In fact, a whole clause of the Bill, Clause 63, deals with delegation and other references to it are scattered throughout the Bill. Certain matters may be delegated while certain matters may not be; certain bodies may delegate while certain bodies may not. I surmise that what is in the draftsman's mind is the legal rule of general application, and extending to statutes, that a delegate may not sub-delegate without being given the responsibility and power to do so.

Many of the provisions in this Bill as to delegation do not fit into that pattern. They seem frequently to be quite unnecessary. My question is: for the purpose of this Bill, is the assembly itself regarded as the delegate? It is true that it deals with delegated legislation and perhaps we shall be told in due course that it deals primarily (although I think not exclusively) with delegated legislation. However, I do not think that that is sufficient to make the assembly a delegate. If it is not, it has the full power of delegation.

As to the other instances, I think that they need to be considered in the light of the rule which I have suggested. If I have suggested wrongly, the Minister will correct me. I should be grateful if the noble Lord could deal with those two matters.

Lord Williams of Mostyn

On the noble and learned Lord's last point, it seems to me that Clause 60(7) points to the possibility of a practical outcome which the noble and learned Lord himself recognised; namely, that there may be no single party with more assembly members than any other single party. One might have two parties each with 30 members; three parties each with 20 members; or four parties each with 15 members. It is perfectly plain that the largest party is that party, if any, which has a majority over any other single party.

Lord Simon of Glaisdale

Perhaps the noble Lord will allow me to intervene. How does that fit in with subsection (4), which states that a member who represents the largest party in the Assembly may not chair it"? If a number of parties have equal support, how does subsection (7) answer the question raised by subsection (4)?

Lord Williams of Mostyn

Because there is no question in subsection (4). That subsection states that a member who represents the largest party in the Assembly may not chair it". If there is no such largest party in the assembly, as defined in subsection (7)—

Lord Hooson

He can be in the chair.

Lord Williams of Mostyn

Yes, as the noble Lord. Lord Hooson, says, he can be in the chair. Although I hesitate to say this when dealing with any Bill, this is perfectly simple and plain.

Again, it seems to me that subsection (5) is perfectly plain. It contains the injunction that the subordinate legislation scrutiny committee is not lawfully enabled to delegate that function under Clause 59(3). For my own part, subject to any further persuasion and any correspondence in which the noble and learned Lord and I may engage, I cannot see the difficulty.

Lord Mishcon

The Minister needs no help from me, but is it not clear that subsection (7) covers with clarity the situation where the Bill might have provided that the largest party is the party which has a majority over all other parties? The subsection makes it perfectly clear that the definition of "the largest party" is the party with a majority over any single party.

Lord Simon of Glaisdale

I simply do not know how the noble Lord, Lord Mishcon, manages to think that the largest party means the party with a majority over all the rest. The largest party is the largest party. That is all there is to it.

Lord Mishcon

I hear the noble and learned Lord.

Lord Mackay of Ardbrecknish

Perhaps I may intervene as a referee. I think that the noble and learned Lord, Lord Simon of Glaisdale, has the argument. I understand what is meant by "the largest party", but thanks to the noble and learned Lord asking questions about it, I think that the point of subsection (4) is to prevent the party which provides the executive from occupying the chair of the committee. I imagine that that is the intention.

However, what happens if the largest party is not a member of the executive because a number of other parties have got together in a coalition? It seems to me that the party in opposition—if I may so describe it—will not be allowed to occupy the chair of the committee whereas I believe that the clause is designed to try to ensure that the largest party does not run the executive and chair committees. Perhaps I am wrong, but I believe that I have created a scenario in which the largest party may not be running the executive and will not be allowed to chair the committees either. I suspect that that is not what the noble Lord intends should happen. One wonders whether it is an unintended consequence to which the noble and learned Lord, Lord Simon of Glaisdale, has drawn the attention of the Committee.

Lord Williams of Mostyn

No. Clause 60(3) plainly provides that the assembly first secretary and an assembly secretary are both disqualified from being members of the subordinate legislation scrutiny committee. The noble Lord, Lord Mackay of Ardbrecknish, posits the question whether one wants a member of the executive on the subordinate legislation scrutiny committee. The answer is plainly not. These individuals are disqualified by virtue of subsection (3). One then considers subsection (4) which provides: The Assembly shall elect one of the members of the subordinate legislation scrutiny committee", the first secretary and assembly secretary already having been excluded by subsection (3), to chair the committee but a member who represents the largest party in the Assembly may not chair it". That leads us happily to subsection (7) where the largest party is defined. As the noble Lord, Lord Hooson, interjected sotto voce, if there is no "largest party" there will be no consequent disqualification. All is plain, all is pure, all is light.

Lord Mackay of Ardbrecknish

I do not believe that all is plain, pure and light. I was not bothered about whether the assembly first secretary or an assembly secretary would be the chairman of the committee but whether a member of his or her party would be able to be chairman in those circumstances. If it was not the majority party and therefore not excluded from the chair those individuals could be in the governing party or the party whose members formed the executive and they could chair it. I believe that a distinction should be drawn, which is very clear in my mind. If I do not express it very well I apologise. I can see a circumstance in which a party which is the majority party is locked out of being part of the executive and is then locked out from having any of its members as chairmen of these committees. Equally, a party that is in the executive—perhaps the party holding all of the executive seats—may have members sitting as chairmen because they are not from the largest party. Perhaps the noble Lord should look at this matter. I do not believe that in certain scenarios this provision would fulfil the Government's sensible and enlightened intention under this clause.

Lord Williams of Mostyn

The noble Lord is confusing "executive". I take it that by that he means the first secretary or an assembly secretary whom he describes, according to his second thoughts, as "of the executive party". Let us assume that the largest single party is the Labour Party. There may well be some Labour Party members who will be the first secretary or an assembly secretary. By virtue of holding office as first secretary or assembly secretary, not by virtue of being the majority party, they will automatically be disqualified from membership of the subordinate legislation scrutiny committee, because that is plain from Clause 60(3). The scenario put forward by the noble Lord does not derive anything by way of prohibition or injunction that is in Clause 60. I shall consider this matter again but I am pretty certain that the noble Lord has got it wrong. Perhaps I have got it wrong, in which case I shall write to the noble Lord and to others and place a copy in the Library.

Lord Simon of Glaisdale

There is one question that the noble Lord has not dealt with which arises on Clause 63. This is fundamental to all the provisions about delegation. Is the Welsh assembly a delegate? If it is a delegate it cannot sub-delegate without authority; if it is not a delegate it can do so. In the background that I suggested there is the puzzling situation that it deals primarily, although I gather not exclusively, with delegated legislation. That is the background. I would be very grateful if the noble Lord would consider it further.

Clause 60, as amended, agreed to.

6.45 p.m.

Clause 61 [Audit Committee]:

Lord Williams of Mostyn moved Amendment No. 160A:

Page 31. line 31, at end insert ("or Pwyllgor Archwilio").

The noble Lord said: Amendment No. 160A seeks to insert the words "or Pwyllgor Archwilio". That is the Welsh translation for Audit Committee. As the Bill presently stands this committee is the only body or person that has the misfortune of not having its name in both languages. Therefore, I beg to move this amendment which will provide consistency in this respect.

On Question, Amendment agreed to.

[Amendments Nos. 161 to 163 not moved.]

Lord Elis-Thomas moved Amendment No. 163A

After Clause 61, insert the following new clause—