Lords Sitting of 11 May 1998

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Carlisle.

Cyprus
Baroness Knight of Collingtreeasked Her Majesty's Government:
Whether they would support an American initiative to start peace talks on the Cyprus issue.
Lord Whitty: My Lords, Her Majesty's Government fully support US efforts in support of the United Nations Secretary-General's Mission of Good Offices in his search for an overall solution to the Cyprus problem.
Baroness Knight of Collingtree: My Lords, does the Minister agree that there is some urgency, bearing in mind the recent Greek Cypriot decision to deploy Russian S300 surface-to-air missiles and, at a lower level, the continuing inconvenience in that all visitors to and exports from Northern Cyprus must go through Turkey?
Lord Whitty: My Lords, I agree that there is a real danger of increased tension in the area partly as a result of the decision to deploy the missiles. That is why Mr. Holbrooke was in Cyprus during the weekend of 1st to 4th May. The Government remain committed to his efforts, and to those of others under the UN umbrella, as he tries to pursue a settlement in Cyprus. From that point of view, the situation is urgent.
The Earl of Lauderdale: My Lords, does the Minister agree that there is a Russian element to the problem which is indirectly related to the attention being paid to central Asia as regards mineral resources?
Lord Whitty: My Lords, I am afraid that I cannot make the last connection, although the noble Earl may wish to pursue it. There is a Russian element in the sense that the missiles being ordered by the Cypriot Government are of Russian origin. We have made it clear that we do not think it wise of the Cypriot Government to acquire those missiles, although they have the right to do so in defence of the sovereign territory of the Republic of Cyprus.
Lord Ponsonby of Shulbrede: My Lords, does my noble friend believe that this is precisely the kind of issue in which the Western European Union should be playing a greater role because all the parties concerned are members or observers of the WEU? Will my noble friend encourage the Council of Ministers and the parliamentarians of the Western European Union to make greater efforts to try to resolve this potentially disastrous situation?
Lord Whitty: My Lords, I shall encourage anyone to contribute their good offices to improving the situation
812
and increasing the likelihood of a settlement within Cyprus. However, there is a serious problem with the WEU or NATO formally being the main peacemakers in the area in that both Greece and Turkey are members of NATO and therefore conflicts are involved. We have primarily supported the UN efforts in this area and the efforts of the US in support. We have also designated our own special negotiator, Sir David Hannay, on behalf of the UK presidency, to try and make progress in the area.
Lord Pilkington of Oxenford: My Lords, when the Government advise the Republic of Cyprus, will they bear in mind that the crisis which produced such antagonism from the Turks was caused, in the first instance, by the attempts of the Greek Cypriots to unite with Greece? That created great tension in the Turkish community which could be repeated. Therefore, may I urge the Government to put pressure on the Republic of Cyprus not to accentuate the tension by deploying such missiles?
Lord Whitty: My Lords, we could go over the desperate history of the period in the 1970s, but the fact remains that there was a Turkish invasion of the Republic of Cyprus. Those troops remain there and we recognise the legitimacy of the Government of Cyprus. Nevertheless, we consider that all parties to the dispute should try to seek an intercommunal settlement. We support the UN, the US and anyone else who contributes towards the achievement of that settlement.
Lord Jenkins of Putney: My Lords, does my noble friend agree that an increased nuclear threat in Europe or anywhere else is to be condemned? Should not the Government actively take a more negative attitude towards such development?
Lord Whitty: My Lords, the Cypriot Government are not acquiring nuclear weapons so this is not a nuclear issue. Nevertheless, I agree with my noble friend and the noble Lord, Lord Pilkington, that it would have been better had the escalation of weaponry within Cyprus not occurred. However, we recognise the right of the Cypriot Government to acquire arms to defend themselves. Furthermore, from the point of view of Turkey, it would be better were sabre-rattling not to occur. The situation is delicate and all efforts must be directed at seeking a settlement.
Lord Ellenborough: My Lords, does the Minister agree that the very unsympathetic attitude of some of the western countries and the European Union towards Turkey has resulted in the fact that the Turkish Cypriots are merely pushed towards Turkey and Turkey is pushed away from the West towards the Islamic East, which may be a very dangerous situation?
Lord Whitty: My Lords, Her Majesty's Government recognise the potential danger of that situation. Indeed, we were anxious that Turkey should take part in the European conference organised in March of this year. However, the Turkish Government declined to participate. We are hoping that further diplomatic efforts will be made so that Turkey will feel able to participate

813
in the process emanating from that European conference and that, therefore, relations between the European Union and Turkey will improve because they were seriously damaged at about the time of the Luxembourg conference.
Lord Pearson of Rannoch: My Lords, further to the answer which the Minister gave to his noble friend Lord Ponsonby of Shulbrede, would he agree that the Western European Union does not in fact have any foreign policy successes to its credit; that it is most unlikely to chalk one up in this instance; and that therefore Her Majesty's Government are best advised to continue collaboration with NATO and with our allies, the United States of America?
Lord Whitty: My Lords, I agree with the noble Lord's conclusion but not with his premise. The WEU has a number of initiatives in the former Yugoslavia and so on which can be pointed to. However, the main peace process within Cyprus will be carried out through the auspices of the United Nations. We shall continue to support that and in particular United States's efforts to support that UN initiative.
Lord Moynihan: My Lords, in view of the Minister's support for the US initiative, does the Minister agree with Richard Holbrooke, the special emissary appointed by President Clinton to forge a peace deal between the Greeks and Turks in Cyprus, when he said that:
"[The] EU's decision to open membership talks with Cyprus in March was a correct one, but the failure to put Turkey on the same basis as the other 11 countries that began the accession process was a mistake"?
Lord Whitty: My Lords, not precisely. I obviously agree with the first part of Richard Holbrooke's remarks. As regards the second part, I have said already that we considered it important that Turkey should participate in the European conference. We made all diplomatic efforts to try to ensure that that happened. In the event, the Turks declined to attend. However, there is a distinction between Turkey and some of the other applicant members of the European Union, particularly the five which are not currently involved in formal negotiations, in that there are political problems with the Turkish application which must still be addressed. Nevertheless, we believe that Turkey should return to a positive relationship with the European Union which, in current circumstances, means participating in the European conference process.

Mordechai Vanunu
2.35 p.m.
Lord Aveburyasked Her Majesty's Government:
Whether the Prime Minister raised the case of Mordechai Vanunu at his meeting with the Israeli Prime Minister on 19th April, and what response he received.
Lord Whitty: My Lords, the Prime Minister did not raise the case of Mordechai Vanunu when he met the
814
Israeli Prime Minister recently. However, we have already raised Mr. Vanunu's case with the Israeli Government on humanitarian grounds and, if necessary, will do so again.
Lord Avebury: My Lords, I am grateful to the Government for raising the case of Mr. Vanunu with the Israeli authorities. Is the Minister aware that recently the honourable Member for Islington North and myself presented to the Israeli Prime Minister and President a petition which had been signed by hundreds of people from all over the world, from Archbishop Desmond Tutu downwards, calling for Mr. Vanunu's release and that that release has been demanded also by Amnesty International? Does not the Minister believe that the continued detention of Mr. Vanunu is purely retributive in view of the fact that he has already spent 11 years wholly deprived of human company? That represents a much more severe sentence than the 20 years originally passed on him.
Lord Whitty: My Lords, I am indeed aware of the noble Lord's visit to Israel and his contact with the Israeli authorities. As a government, we have expressed our concern about the solitary confinement which was ended earlier this year. However, Mr. Vanunu is still in confinement. The Government have raised those humanitarian concerns with the Israeli Government and will continue to do so. That was done most recently by my honourable friend Mr. Derek Fatchett.
Lord Hylton: My Lords, will the Government use their best endeavours to make sure, first, that the prisoner is allowed to associate with other prisoners, and, secondly, that in due course and as soon as possible he is released?
Lord Whitty: My Lords, as I understand it, the solitary confinement has finished. There are other humanitarian concerns which we shall continue to raise. However, the aegis of Her Majesty's Government is relatively limited in this matter because the prisoner is being dealt with under Israeli law and there is no real locus for the UK Government.
Lord Janner of Braunstone: My Lords, am I not right that on 13th December 1945, the House of Lords, sitting in the Queen's Robing Room, rejected an appeal against conviction for treason and sentenced to death one Lord Haw-Haw, who did not acquire his title either by heredity or appointment but through notoriety? Does my noble friend agree that if anyone committed the sort of treason against our country that Vanunu committed against his, that person would receive very little sympathy either in this House or in the country?
Lord Whitty: My Lords, the case to which my noble friend refers was slightly before my time but I am aware of the circumstances and the emotions surrounding it and the situation of British law at that time. Our concern is that Mr. Vanunu should be treated properly under Israeli law and on humanitarian grounds. As I say, we have raised those concerns with the Israeli Government from time to time and, if necessary, will continue to do so.
Baroness Williams of Crosby: My Lords, given that the world has moved on in the past 45 years, does the Minister agree that Israel would wish to live by the highest standards of civilised and tolerant conduct? In particular, will he see whether steps can be taken to ensure that Mr. Vanunu receives visits from his family and from others who wish to see him?
Lord Whitty: My Lords, I hope that the Government of Israel will abide by humanitarian standards in that respect. Indeed, that will be one aspect of the representations which are made. We have made several representations to the Israeli Government on humanitarian grounds on a number of issues, many of which have been taken on board. We hope that the Israeli Government will continue to listen to points made in your Lordships' House, as well as to those made elsewhere, on behalf of this particular prisoner.
Lord Jenkins of Putney: My Lords, does my noble friend the Minister agree that Mr. Vanunu is greatly admired by all sensible people throughout the world because he blew the whistle when his government secretly and nefariously acquired a nuclear capacity?
Lord Whitty: My Lords, we have frequently expressed our concern about the Israeli development of a nuclear capability. Indeed, we have urged the Israeli Government to sign the non-proliferation treaties. To that extent, therefore, I agree with my noble friend that that is the actual issue, rather than necessarily the precise treatment of this prisoner, which I believe should continue to be dealt with under Israeli law.
Lord Cocks of Hartcliffe: My Lords, have the Government received any representations from the noble Lords, Lord Avebury, Lord Hylton and Lord Jenkins, regarding a free pardon for Dr. Klaus Fuchs and Dr. Alan Nunn May?
Lord Whitty: My Lords, although I am, in general, aware of those cases, I am unaware of any such representations.
Lord Monkswell: My Lords, bearing in mind that the Government support the public interest disclosure legislation, which will affect residents in the UK, does not this case demonstrate the need for international action to protect international whistle-blowers who publicise information which is of benefit to the world-wide community?
Lord Whitty: My Lords, ideally, the answer is probably "yes". However, in practice, these issues are unlikely to be conceded by governments, all of whom have a legitimate security concern.
Lord Avebury: My Lords, does the Minister recall that Mr. Vanunu was originally enticed away from the territory of the UK? Therefore, does not that give us something of a locus in the matter? Further, will the Minister make representations to the Israeli authorities to allow Mr. Vanunu to see his brother, who has been
816
deprived of the privilege of visiting him since he conveyed some questions, which were perfectly legitimate, to the Sunday Times?
Lord Whitty: My Lords, as I understand the issue, and as far as one can ascertain, Mr. Vanunu actually left UK soil of his own volition. Therefore, anything that happened subsequently did not happen on UK soil. Nevertheless, we do have a general humanitarian concern here, including on the issue of family visits. However, I believe that that was probably covered by my earlier answer to the noble Baroness, Lady Williams.

Miners' Claim Against British Coal
2.52 p.m.
Lord Islwynasked Her Majesty's Government:
What is the result of the negotiations that have taken place with lawyers acting on behalf of miners suffering from chronic bronchitis and emphysema in respect of their claim for compensation.
Lord Haskel: My Lords, unfortunately, the negotiations are not yet finished. On 27th March, the plaintiffs' solicitors asked the court for a three-month adjournment to allow for further discussions. This was granted. Discussions continue and we hope that, by the end of June, we will have an agreed settlement. I should point out that the Government have real sympathy for those miners unfortunate enough to have suffered lung damage. That is why we intend that these arrangements should provide a quick and fair settlement.
Lord Islywn: My Lords, does my noble friend the Minister appreciate that the Government's action in agreeing to settle the miners' claims in line with the High Court decision was much welcomed? However, since that time, there have been damaging reports stating that thousands of claimants have not even received the £2,000 interim payment. Can my noble friend tell the House what the real reason is for this delay? Further, will my noble friend ensure that the Government take action to speed up the process so that these miners—these worthy applicants—who have had their lives ruined through the arduous and hazardous nature of the mining industry, receive their just compensation?
Lord Haskel: My Lords, I can assure my noble friend that we are not moving slowly. That is why we are offering interim payments of £2,000 each to at least 5,000 elderly claimants who are currently receiving state benefit for chronic bronchitis and emphysema. We have also extended this to widows whose husbands were in receipt of that benefit. Nearly 1,000 offers have been made since April. We hope to start making interim payments this week.
Lord Ezra: My Lords, in seeking to reach an agreement on the present case, will the Government bear in mind the settlement reached as regards pneumoconiosis some years ago when a substantial

817
capital sum was set aside from which adequate compensation was thereby made to those suffering from this dread disease, thus avoiding expensive court action?
Lord Haskel: My Lords, British Coal set up the pneumoconiosis compensation scheme in 1975, in agreement with the unions, on a no-fault liability basis to avoid a long and expensive trial. However, liability has been established for chronic bronchitis and emphysema. Therefore, settlement arrangements will have to reflect that fact.
The Earl of Lauderdale: My Lords, will the Minister acknowledge the fact that the pneumoconiosis scheme was a piece of Tory legislation, for which the Conservatives should be credited?
Lord Haskel: My Lords, it was indeed an awfully long time ago.
Lord McNair: My Lords, can the Minister give me any hope for justice for men such as my neighbour in south Wales, Mr. Owens, who spent 25 years boring into silica rock without the benefit of water damping equipment and, therefore, suffers from silicosis and who now faces apparent collusion between the social services and the medical authorities in his attempts to gain just compensation?
Lord Haskel: My Lords, I am afraid that I cannot give the noble Lord much hope as regards the particular arrangement that we are now discussing. The judgment was specific to underground coal-mining and the damages reflect the negligence of British Coal. Compensation will reflect that fact. The settlement arrangements cannot extend to employees in other industries.
Lord Hylton: My Lords, are the Government aware that, in the former Bristol coalfield where I live, there are several dozen qualified miners all of whom are aged 70 or 80 and among whom there are, therefore, frequent deaths? Will the Government accelerate these payments as much as they possibly can?
Lord Haskel: My Lords, the Government are well aware of this and priority has been given to elderly miners.
Lord Thomas of Gresford: My Lords, are the Government actively considering compensation not just for coal-miners, which we welcome, but also for quarrymen who have suffered from lung damage through long employment in the slate quarries of north Wales?
Lord Haskel: No, my Lords; this judgment is specific to negligence by British Coal.
Earl Attlee: My Lords, can the Minister tell the House what size of financial provision the Government have made for these claims, both for this financial year and the next?
Lord Haskel: My Lords, it is too early to say what the total cost will be as all the claims have not yet been evaluated. It is a huge task. There are tens of thousands of claimants and hundreds of millions of pounds involved. Indeed, it is just too early to be able to say.

Office of Science and Technology
2.58 p.m.
Lord Peyton of Yeovilasked Her Majesty's Government:
Whether they will consult with leading scientists as to whether it would be more beneficial in the national interest for the Office of Science and Technology to be located in the Cabinet Office rather than as at present in the Department of Trade and Industry.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, as my noble friend Lord Haskel made clear to your Lordships on 6th April, the Government have no plans to relocate the Office of Science and Technology from the Department of Trade and Industry, where it successfully fulfils a distinct and most valuable function. The Government, therefore, have no intention to undertake a consultation exercise in this respect.
Lord Peyton of Yeovil: My Lords, what a sad Answer. Is the Minister just dimly aware that this slavish following of a not particularly brilliant decision by the previous administration seems a little eccentric? I would be grateful if he could explain to the House how it is possible for the Office of Science and Technology to occupy a central and independent position among all departments, as it should and as the noble Lord, Lord Haskel, said it did on 6th April, when it is absorbed into and is part of the DTI, where it has no influence whatever on the remainder of the Government.
Lord Simon of Highbury: My Lords, I note that the previous time this Question was asked by the noble Lord the answer was less than dismal. I have tried to give the same one. The decision was taken by the previous administration on the grounds that it was its belief—it is one we share—that the development of our science and technology rides well with our industrial development policy and our ability to apply that policy for the benefit of Britain's competitiveness. We do not feel so strongly about where one locates offices; we feel very strongly about the quality of the people and the advice that they can give to government.
Lord Craig of Radley: My Lords, given the reports in the media about the establishment of a Prime Minister's office or department in the event that such a reorganisation should take place, would that not be an appropriate moment to move the Office of Science and Technology into that new department?
Lord Simon of Highbury: My Lords, I do not think we have any details yet of the reorganisation of the central offices. As I said, we have no intention at present to undertake consultation on this matter. The system is well understood and functions successfully.
Lord Tordoff: My Lords, does the noble Lord accept that science and technology is not all about commerce and industry; it is about science, which is much more widely based than merely DTI matters?
Lord Simon of Highbury: My Lords, I perfectly understand the noble Lord's point. At present we have a budget of £14.4 billion for science. That may be allocated to pure science—in industrial terms one can call that "blue skies" research—and to the application of science and the development of technology which is desperately needed to make our industry more competitive. That annual sum of £14.4 billion should be able to accommodate both aspects.
Earl Russell: My Lords, I was glad to hear the Minister mention "blue skies" research, but does he understand that the skies in the Department of Trade and Industry are not blue?
Lord Simon of Highbury: My Lords, today I can remember only seeing the sun shine through my windows.
Lord Porter of Luddenham: My Lords, the noble Lord, Lord Peyton, has asked whether Her Majesty's Government will consult with the leading scientists on this matter. If they do so, whom will they consult? The Chief Scientific Adviser and the director general of the research councils are part of the Department of Trade and Industry and are therefore hardly in a position to give independent advice. In this country we have a truly independent body of scientists; namely, the Royal Society. This is closely associated with other relevant bodies; for example, the Royal Academy of Engineers, the medical colleges and others. They understand that science extends far beyond trade and industry. Will the Government seek the advice of the scientists themselves on this matter?
Lord Simon of Highbury: My Lords, the noble Lord has asked a hypothetical question. As I said, we are not in the process of a formal consultation for the reasons I explained in a previous answer. All the time there is, of course, informal consultation with the scientific community. If that became formal consultation for reasons which I do not have at my fingertips—I do not believe they are in the plans—no doubt the learned bodies to which the noble Lord refers could play a part in that consultation.
Lord Peyton of Yeovil: My Lords, is the noble Lord aware that I do not doubt that the reply has been inserted in his brief by his officials or some of his colleagues? It implies that the Government are not interested in the opinions of an eminent body such as the Royal Society. Is he aware that it is at least tinged with arrogance?
Lord Simon of Highbury: My Lords, I do not accept that. As I said, there is continuous consultation with the scientific community about the quality of our research and the strenuous efforts that are made by our scientific bodies. I refer to the Foresight Operations and the Business Link Operations. There is continuous consultation. As I said, at present formal consultation is not taking place. This Government have been a listening government and no doubt if there were formal consultation we would listen formally to the opinions of the bodies that the noble Lord has mentioned.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that there has been much concern over a long period of time that scientific discoveries and inventions made in this country have been developed abroad and not in this country? Is it not therefore sensible for the Department of Trade and Industry to be the lead department for science to enable us to develop discoveries which have been made in this country rather than allow foreign countries to reap the benefit of that?
Lord Simon of Highbury: My Lords, I am grateful to my noble friend for returning to the serious point of why the previous administration took the decision to locate the Office of Science and Technology in the DTI. That was done to add value to our science and to make our businesses more competitive. I believe that decision was correct. I quote from the report of the House of Commons Select Committee which was published just before the election. It states:
"There may be a temptation for Government to reconsider the system for managing, reviewing and allocating funds for public research; the evidence we have received leads us to conclude that the present system is now working well and there is, accordingly, no requirement for major change, with all the disruptions that it would bring".
Lord Peyton of Yeovil: My Lords, I hope I may pester the noble Lord again. He referred to a listening government. That tempts me into observing that they have become very deaf.
Lord Simon of Highbury: My Lords, I am listening carefully to the noble Lord. I heard every word he said and I repeat that we are listening.

Sierra Leone: Arms Sales
3.6 p.m.
Lord Moynihan: My Lords, I beg leave to ask a Question of which I have given private notice, namely:
Whether Her Majesty's Government will make a statement on reports concerning British sales of arms to Sierra Leone in breach of the United Nations arms embargo.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, my right honourable friend the Foreign Secretary made a statement on this issue in another place on 6th May. I am glad to have the opportunity to give your

821
Lordships as full a picture as I am able at this stage. We have consistently stressed the Government's intention to discover the full facts surrounding this case and to be as open as possible.
Let me put this into context. As the Prime Minister said today:
"This affair has been more than a little overblown. Of course it is the case that nobody should be involved deliberately in breaking a UN arms embargo".
But he also said,
"Don't let us forget that what was happening was that the UN and UK were both trying to help the democratic regime from an illegal military coup…That is the background and people can see that a lot of the hoo-ha is overblown".
I think that is an admirable summary which we would do well to remember.
Having said that, I must re-emphasise to your Lordships that Her Majesty's Customs and Excise, which is investigating the allegations of breaches of the arms embargo on Sierra Leone, has requested that while its investigation proceeds, nothing should be said that could prejudice it. It is a matter of record that the Customs investigation resulted from notification of the alleged breach being passed to it by the Foreign and Commonwealth Office. I welcome that investigation, and I hope that it can be completed swiftly.
When that investigation has been completed, the Foreign Secretary has announced his intention to appoint a person from outside the Foreign Office and Diplomatic Service to carry out a full investigation. The report of that investigation will, of course, be made public. In the meantime I can confirm to your Lordships that my department is co-operating fully with the Customs investigation.
I should also like to make the point that it is important to recognise that just because allegations have been made against officials in my and other government departments, we should not assume that they are true. This is a matter on which it is important not to rush to judgment until we have seen the conclusions of the investigation.
There have been a number of questions raised in the last few days about the investigation which the Foreign Secretary announced on 6th May: who is to head it; what its terms of reference are to be; how wide its scope should be. Your Lordships will appreciate that before it is set up it would be wrong for me to speculate on those questions. What I can say is that as soon as possible after the Customs investigation has been completed we will make an announcement that covers all these points.
Your Lordships are aware of the background to the allegations that have been made about breaches of the UN arms embargo on Sierra Leone. In May 1997 President Kabbah, the democratically elected leader of Sierra Leone, was deposed in a military coup. In October 1997 the UN Security Council passed Resolution 1132 which, among other things, imposed an arms embargo on Sierra Leone. That resolution was then implemented in the United Kingdom by an Order in Council. In March this year President Kabbah was restored to power in Sierra Leone with the assistance of military forces from the region.
822
Allegations contained in a letter from the noble Lord, Lord Avebury, in February that arms had been flown from Bulgaria to supply forces loyal to President Kabbah by arrangement through the British company, Sandline, were referred to H.M. Customs and Excise on 10th March. Since then the Foreign Office has given full, active co-operation to the Customs' investigation and full access to all relevant Foreign Office papers and officials.
The Foreign Secretary made clear on 6th May that he was first informed of the Customs and Excise investigation on 28th April and minuted the Permanent Secretary the following day stressing the importance he attached to full and open co-operation with the Customs and Excise investigation. The private office of the Minister of State with responsibility for Africa, Mr. Lloyd, received copies of papers on the Customs' investigation in early April and they were shown to him for noting in mid-April. However, he was not fully informed of the allegations made by Sandline of Foreign Office contacts until Friday 1st May.
There have been allegations in the press that Ministers had prior knowledge of or gave prior approval to breaches of the arms embargo on Sierra Leone. I can confirm to your Lordships that there was no such prior knowledge or approval. Your Lordships will understand that I cannot go into details which will be covered in full in the investigation by a person from outside the Foreign Office.
It is right and proper that this House should be fully informed of the events surrounding these allegations and I look forward to being able to present the report of the investigation to your Lordships when it has been completed. In the meantime, I would once again draw your Lordships' attention to the context of the allegations which are being made: the legitimate government of President Kabbah has been restored to power in a significant move for democracy in the region.
Lord Moynihan: My Lords, given that earlier today the Prime Minister argued that the end justifies the means, even if you have to breach UN arms embargoes, tear up your ethical foreign policy and allow your Foreign Secretary to tell the House of Commons a very different story from the one made public today by the Prime Minister, when did the Minister learn about the Prime Minister's new foreign policy? And can the Minister explain to the House why such an extraordinary intervention by the Prime Minister was made when a Customs and Excise investigation into possible criminal charges is under way?
When did the Minister first learn of Sandline's involvement; and is the noble Baroness now aware that Ministers responsible for Customs and Excise first knew about the affair on Wednesday 1st April?
Finally, is it true that when the Foreign Secretary's ministerial boxes are returned by him, civil servants in the Foreign Office take it as read that the Foreign Secretary is content if papers are returned without written comments on them?
Baroness Symons of Vernham Dean: My Lords, the noble Lord is quite wrong. There is no, as he describes

823
it, new foreign policy. As I made clear when I gave my Answer to your Lordships' House a few moments ago, the Prime Minister said quite clearly,
"Of course it is the case that nobody should be involved deliberately in breaking a UN arms embargo".
The Prime Minister said that. I made that clear to your Lordships. When did I first hear about it? At about lunch time today. The Prime Minister made that statement this morning. I reiterate to your Lordships,
"nobody should be involved deliberately in breaking a UN arms embargo".
The Prime Minister has said exactly the same as the Foreign Secretary has made clear: we are seeing an investigation by Customs and Excise and my right honourable friend, the Foreign Secretary, has made it clear to everyone that as soon as that investigation is completed he will initiate the investigation in the Foreign and Commonwealth Office by a person from outside the Diplomatic Service or the Foreign and Commonwealth Office.
The noble Lord asked when I knew of Sandline's investigations. I saw a report in the Observer shortly before 10th March. These were allegations but I would not expect to see detailed papers. As the whole House will know, the Minister that deals with these questions in the Lords is briefed for Lords' debates and I would not expect to see, and nor indeed would it be proper and right for me to see, papers which are meant for other Ministers in their own areas of responsibility.
Lord Avebury: My Lords, does the noble Baroness recall that on 9th March before my Question the following day I wrote to her not only drawing attention to the Observer article but also to the fuller account, and perhaps the more reliable one, given in the US News and World Report which repeated the allegations that had been made as long ago as 31st July 1997 in the Toronto Globe and Mail?
Would the Minister agree that while we should not assume that the allegations that have been made are true, neither should we assume that they are false, and that the Prime Minister, in paying tribute to Mr. Peter Penfold, has undermined the future inquiry announced by the Foreign Secretary on the complicity of Foreign Office officials in the alleged violations of Security Council Resolution 1132? And has he not also undermined the position of the Foreign Secretary himself in describing as "hoo ha" alleged breaches of international law which Mr. Cook has treated with the seriousness that they deserve?
Does not the Minister also agree that a further matter has now arisen; that is, the role of the Royal Navy in helping to provide services to the firm of so-called military consultants who are at the centre of this controversy? Is the Minister aware that contrary to the impression given by the Prime Minister this morning that peace had been restored in Sierra Leone, one of the legacies of the counter coup is that they have been left with an ethnic militia known as the Kamajors which is hostile to other groups within the territory and that far from promoting reconciliation, the restored government have charged 59 people with treason and locked up
824
2,000 others without charge, most of whom are northeners or ethnic Krios and that this is hardly a recipe for the national reconciliation of which both Resolutions 1132 and 1162 have spoken?
Baroness Symons of Vernham Dean: My Lords, the noble Lord says that in the same way as we must not judge that the allegations that have been made are true, we should not judge that they are false. That is self-evidently so. That is the reason that there is a Customs and Excise investigation in process. That is the reason my department is co-operating fully with that Customs and Excise investigation. It is also the reason that we shall continue beyond that to look at any other pieces of information which may be of relevance in this business.
I do not accept that what the Prime Minister said this morning in any way undermined the Customs and Excise investigation, or the very robust position which my right honourable friend the Foreign Secretary has taken on these issues. They are very serious issues indeed; my right honourable friend has emphasised that at every turn. My right honourable friend the Prime Minister also emphasised that this morning, saying that nobody should be involved in deliberately breaking a UN arms embargo. He could not have been more unequivocal in his condemnation of any such breach, if that is the case.
The noble Lord also raised questions concerning President Kabbah's regime at the moment. I do not have information on what is happening at this moment in Sierra Leone, but I am happy to write to the noble Lord on the specific points he raises. All I can say to him is that this Government have supported the process of conciliation, as I hope I made clear in answering Questions in your Lordships' House on the day that President Kabbah was restored to Government on 10th March. But I shall of course be happy to write to the noble Lord on the detailed point he raises.
Lord Kennet: My Lords, this is not a hostile question but a request for a piece of information which I believe would help public understanding. What aspects of Customs law might have been broken by a firm which transported arms from Bulgaria to Sierra Leone without, as I understand it, touching down in the United Kingdom?
Baroness Symons of Vernham Dean: My Lords, I am not an expert on Customs and Excise. I understand the allegation is that a UN arms embargo has been broken. That is a very serious question; and it is taken very seriously by this Government. I am afraid that we shall have to await the Customs and Excise report. As I am sure all noble Lords will agree, it would be wrong in any way to prejudice the outcome of the Customs and Excise investigation.
Lord Tebbit: My Lords, does the noble Baroness recollect that only about a week ago this whole affair was a disgraceful matter, all got up by a bunch of mercenaries called Sandline? However, according to the Prime Minister this morning, it was all rather a wizard

825
idea thought up by the British High Commissioner and Sandline did not have much to do with it. I wonder what the noble Baroness's story will be next.
Will the Minister tell me whether the Government interpret the UN resolution as being an embargo on the sale and transport of arms to the country called Sierra Leone or to the previous military regime in Sierra Leone?
Baroness Symons of Vernham Dean: My Lords, I do not recognise the definition with which the noble Lord sought to characterise this debate. Nobody has described this as what he calls—I assume in an effort to be light-hearted—a wizard idea. The Prime Minister has taken this issue enormously seriously, as has my right honourable friend in his very robust responses on the issue.
The noble Lord asked a serious question which I shall attempt to answer. As I understand it, the Sierra Leone United Nations sanctions order prohibited sale or supply of arms to any destination for the purposes of delivery, directly or indirectly, to or to the order of a person connected with Sierra Leone. I understand that that is what is in the Sierra Leone United Nations order. I hope that that answers the specific point the noble Lord made.
Baroness Williams of Crosby: My Lords, perhaps I may—
Lord Ewing of Kirkford: My Lords—
Lord Peston: My Lords, it is this side's turn.
The Lord Privy Seal (Lord Richard): My Lords, I am sorry to have to lumber yet again to my feet at Question Time. However, I think that it is this side's turn and then no doubt that of the noble Baroness.
Lord Peston: My Lords, none of us will disagree that we must wait for the two inquiries to take place. However, I believe my noble friend said that Ministers had no prior knowledge and gave no prior approval. Being herself a Minister, I think that she included herself. As regards the proceedings of your Lordships' House, is it not therefore a matter of honour that we do not remotely question that statement? Ministers have said something; my noble friend has repeated that on behalf of Ministers and on her own behalf. I would not wish anyone to stop asking any other question. However, I should take a dim view if we were to impugn the honour of a Minister in our own House, or other Ministers, when they have put on record a statement which is easily tested. They know whether it is true or false. They have said that they had no prior knowledge and gave no prior approval. Will my noble friend repeat that so that at least we know according to which rules we are currently playing.
Baroness Symons of Vernham Dean: My Lords, my noble friend mentions the two inquiries. As I have made
826
clear, the Customs and Excise inquiry will be completed first; and then the inquiry by an independent person from outside the Foreign Office will take place.
The noble Lord asked me to repeat the assurance I gave the House. There was no prior knowledge and no prior approval on the part of any Ministers. I hope it goes without saying that, of course, that includes me.
Baroness Williams of Crosby: My Lords, is the Minister aware that many of us share the enthusiasm of the Prime Minister in wishing to see democracy restored in Sierra Leone? However, with respect, that does not seem the key point which concerns many Members in this House and in another place. Perhaps I may ask her whether we may return for a moment to what seems to me the crucial constitutional issue of the relationship between senior officials and elected Ministers, without in any way impugning the honour of the noble Baroness, which I would not dream of doing.
There are two questions which I hope the Minister can assure us any inquiry will pursue. The first is whether Ministers authorised the use of Her Majesty's forces to help to maintain and repair equipment, in particular a helicopter belonging to a private group of mercenaries. The second question is whether, when on 12th March the Minister of State in another place let it be known that in his view an article that appeared on this matter in the Sunday Times was "ill informed and scurrilous", he had inquired of the Foreign Office what submissions it had received. That was more than a month after my noble friend Lord Avebury had drawn the attention of the Foreign Office to the serious allegation that Sandline was involved in breaching UN sanctions. Perhaps I may ask for the Minister's assurance that those two matters will be dealt with in detail and with great care by the public inquiry when it has been established.
Baroness Symons of Vernham Dean: My Lords, I can give the noble Baroness the assurance she requires about the relationship as regards the chain of information between senior officials and elected Ministers. Of course it is of the utmost importance that there is confidence between Ministers and officials over sensitive issues. I can assure the whole House that Ministers, and indeed senior officials, will be co-operating with the investigation by the person from outside the Foreign Office; and that Ministers, and I am sure I speak for senior officials in this respect as well, will be keen to see exactly how all the pieces of this important jigsaw (if I may put it that way without seeming in any way not to take the matter seriously) fit together. That is why my right honourable friend took the initiative in saying that we need a Foreign Office investigation on this matter as well. My right honourable friend is to be congratulated on taking the initiative on that in the way that he did.
Lord Tordoff: My Lords, during the period of these investigations, life is going on in Sierra Leone. Before the coup, there were a number of initiatives to try to improve the level of governance in that unhappy state. May we have an assurance that the Foreign Office will

827
not be totally distracted by what is going on from doing the job that it ought to be doing; namely, trying to strengthen democratic government in Sierra Leone for the future?
Baroness Symons of Vernham Dean: Yes, my Lords, I can give the noble Lord that assurance. Of course, there is much more going on in the Foreign Office at present than simply the preparation for this very important investigation and dealing with the Customs and Excise investigation. The noble Lord is quite right. The normal business of the Foreign Office must continue. That includes dealing with the problems referred to by the noble Lord, Lord Avebury, which are still evident in Sierra Leone.
Lord Ewing of Kirkford: My Lords, perhaps I may apologise to the noble Lord, Lord Tordoff. I had mistakenly assumed that we were all Cross-Benchers! My humble apologies.
Will my noble friend give the House an absolute assurance that if, following the inquiry being carried out by Customs and Excise, criminal proceedings were to take place, unlike the previous Conservative Government—who shame-facedly sought to use public interest certificates to protect Ministers in that government from public scrutiny in regard to any role they may have played in the Matrix Churchill fiasco—our Government will not, in any circumstances, in any proceedings, resort to the use of public interest certificates?
Baroness Symons of Vernham Dean: Yes, my Lords, I can give my noble friend that assurance.
Baroness Young: My Lords, perhaps I may take the noble Baroness back to her answer. I am sure that she speaks with all honesty when she says that no Minister knew what was happening. I speak as someone who has been a Minister. I find it extraordinary, following upon the letter from the noble Lord, Lord Avebury, and press reports, that no Minister was involved. I recognise, and hear, that the noble Baroness does not have responsibility for Africa and I should not have expected her personally to be the first to be informed about anything that was going on. I should, however, have expected her colleague, Mr. Tony Lloyd, whose responsibility it is, to know. There are those among us who find it quite extraordinary that Ministers did not know. How can that be the case? Is it believed that there has been some kind of extraordinary conspiracy on the part of civil servants, including our own High Commissioner in Sierra Leone, who is a most respected man, to keep Ministers in the dark over this affair? Can the noble Baroness shed any light on the point about whether or not there really was some document in a Minister's Box that was possibly not seen?
Baroness Symons of Vernham Dean: My Lords, I repeat what I said in my Answer: there was no such prior knowledge or approval. The noble Baroness asks detailed questions about the possibility of a conspiracy, and how it could possibly have happened that there were
828
no details, prior knowledge or approval. Those questions are entirely right and proper. I applaud the noble Baroness and others for asking them. It is precisely those questions that we hope will be answered by the Foreign Office investigation. It will be carried out by an independent person with no conflict of interest. That person will examine all the paperwork with the full co-operation, not only of Ministers, but also of officials in the Foreign and Commonwealth Office.
Lord Janner of Braunstone: My Lords, surely this House should welcome the Minister's Answer, repeating as it does the Government's firm promise to seek to find and report the full facts. Does my noble friend agree that that is precisely what the previous government did not promise to do, did not do, and should have done in the "arms-to-Iraq" affair?
Earl Russell: My Lords, on 10th March, when the Minister answered a question from my noble friend Lord Avebury on the Observer article, she said:
"That article was in several respects not entirely accurate, or at least not on all fours with the reports that Her Majesty's Government are receiving".—[Official Report, 10/3/98; col. 101.]
The Minister will hear in those words an element of honest doubt. Can she tell the House what accounted for that doubt?
Baroness Symons of Vernham Dean: My Lords. I answered your Lordships as I always do, as honestly and accurately as I could within the terms of the briefing that I had at the time. I can say no more than that, except that, if my remarks are shown to have been inaccurate, although made in good faith, I shall of course correct them.
Lord Harris of Greenwich: My Lords, when does the noble Baroness expect to receive some indication from Customs and Excise as to when its investigation will be completed?
Lord Richard: My Lords, we have been discussing this matter for 28 minutes. The House may feel that these proceedings have gone on long enough. I say that merely because there is no standing order that governs the time allowed for Private Notice Questions. Under those circumstances, I hope that the House will feel that the correct way of dealing with the matter is for the noble Lord, Lord Moynihan, to wind up for the Official Opposition, and then perhaps the House should move to other matters.
Lord Harris of Greenwich: My Lords, with great respect, may I have an answer to the question that I have already put?
Baroness Symons of Vernham Dean: My Lords, we very much hope that the Customs and Excise department will be able to complete its investigations as quickly as possible. At that point, my right honourable friend will wish to make it clear who is to lead the Foreign Office investigation into these matters, and exactly what are the terms of reference for that investigation. I am sure that

829
at that point noble Lords will wish to ask further questions. I shall, as always, be delighted to answer your Lordships.
Lord Moynihan: My Lords, I am most grateful to the Minister for her answers. Inside this House—like, I am sure, those outside—we remain astonished that Ministers in the Government—not merely in the FCO, as we have learnt this afternoon—had no knowledge of the affair. They clearly should have.
Finally, does the Minister agree with those of her colleagues in the "arms-to-Africa" affair who believe and have said that they were quite right to do it?
Baroness Symons of Vernham Dean: My Lords, I am not quite sure what the noble Lord is saying—quite right to do what? No, I do not agree that it is ever right to break a UN embargo. I do not believe that; nor do my right honourable friend the Foreign Secretary and my right honourable friend the Prime Minister.

Police (Northern Ireland) Bill
Brought from the Commons; read a first time, and to be printed.

Government of Wales Bill
3.38 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 resolve itself into Committee on this Bill.
Moved, That the House do now 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 1 [The Assembly]:
Lord Roberts of Conwymoved Amendment No. 1:
Page 1, line 8, at beginning insert ("Subject to the sovereignty of the Parliament of the United Kingdom,").
The noble Lord said: It is worth noting that at the start of this Committee stage we are faced with 65 pages of amendments, new schedules and new clauses. The bulk of those pages—over half—are occupied by government changes to the Bill. Some of them are welcome, and one is sufficiently significant to require a change in the title of the Bill. I refer to the provision relating to the new office of welsh administration ombudsman.
However, I am not complaining at all about what is before us so much as what is not. We still have not seen the Bill relating to the registration of political parties which will shortly feature in our discussions on the Bill, as it has already done in debates on a number of other measures, where it is also relevant. My noble friend Lord Mackay of Ardbrecknish, who has been cooling
830
his ire in Scottish waters this weekend, will, I feel sure, have more to say on the point when it arises in the course of our deliberations.
I am grateful to the Minister for his letter today very much regretting the fact that the second draft of the transfer order, which he promised would be with us before the Committee stage, is not yet available. He told us during his Second Reading speech that it is a bulky document, and that I can well believe. He also told us that it would be available well before we discuss Part II of the Bill. We look forward to its publication, although it is hardly likely to qualify as relaxing bed-time reading.
As regards the amendment which I am moving and the others grouped with it, the aim is to clarify beyond all possible doubt the relationship between the national assembly for Wales and this United Kingdom Parliament. Some may take the view that the contents of the Bill make the relationship clear enough and that the amendments are therefore otiose and unnecessary. But there are good precedents for their inclusion in legislation and we should not disregard those precedents lightly. I shall come to them in a moment.
One of the arguments in favour of devolution advanced by the Government during the referendum campaign was that devolution would strengthen rather than weaken the unity of the United Kingdom. That argument was based on the acknowledgement that the pressures for devolution were inherently centrifugal, but by devolving powers downwards from the centre, a formal statutory scheme of devolution would provide an appropriate opportunity to redefine the bonds that hold the United Kingdom together. Among the forces that make for that unity, the sovereignty of this United Kingdom Parliament must surely be supreme.
Included in the precedents for a statement of this supremacy was the Northern Ireland Constitution Act 1973 which followed Section 75 of the Government of Ireland Act 1920. It stated that:
"Notwithstanding anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Northern Ireland and every part thereof".
My colleagues in the other place tried to secure the inclusion of a Welsh version of that clause in the Bill at Committee stage, but the Parliamentary Under-Secretary of State, Mr. Win Griffiths, argued against it, as did the Secretary of State, Mr. Ron Davies. Mr. Davies said in an intervention:
"There is no need to make it explicitly clear that sovereignty rests with the House, because it clearly does. Nothing that the assembly or any future Government do can undermine the sovereignty of Parliament".—[Official Report, Commons, 20/1/98; col. 866.]
My right honourable friend Mr. Michael Ancram, never had an answer to his counter point at col. 869 that:
"If the sovereignty of this Parliament is complete, what is there to prevent the amendment from being accepted?"
The substance of the amendment was not otiose or unnecessary in the Northern Ireland Constitution Act 1973 or its predecessors. But we are not seeking the full replication of that clause in our first amendment today, merely the inclusion of a reference to the sovereignty of the United Kingdom Parliament in the opening clause

831
of the Bill. We are doing so because many people in Wales would feel reassured by the presence of such a reference on the face of the Bill. Such reassurance is necessary at present. I believe it would be helpful to the Government and to the implementation of the Bill. I should have thought that this Government who claim to be sensitive to public opinion would have ensured the inclusion of such a reference without a prompting amendment of this kind.
As I understand it, the Government propose to remove all references to the Government of Ireland Act 1920 from the new constitutional settlement for Ulster emerging from the Belfast Agreement. However, another section of the Northern Ireland Constitution Act is to be preserved in some form or another—that is, the Section which asserts that although measures classed by the Northern Ireland Assembly would have the same force and effect as an Act of Parliament,
"This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland".
That latter section has been adapted and incorporated in the Scotland Bill where it is to be found in Clause 27(7). A Welsh form is reproduced in our second amendment, Amendment No. 2. Similar wording appears in the Belfast Agreement, paragraph 33.
Again it may be argued that such a re-statement is not necessary in the Government of Wales Bill principally because, unlike Scotland, no primary legislative powers are being devolved to the assembly in Wales. Primary legislative powers remain with this Parliament. The point was made by the Minister, Mr. Win Griffiths, when he replied to the Committee stage debate in the other place. He said:
"It is unnecessary and otiose for a similar statement to be included in the legislation for the Welsh assembly because the National Assembly for Wales will not have the same wide-ranging primary legislative powers as the Scottish Parliament".—[0fficial Report, Commons, 20/1/98; col. 875.]
That, of course, is true, but the Welsh assembly will have very extensive secondary legislative powers and there are more to come. The truth is that we cannot anticipate all the circumstances that may arise or what use will be made of those powers. What we know is that there is a great deal of concern here in this Parliament about the growing use of such delegated powers, the adequacy of scrutiny and so on.
This Bill proposes a further enlargement of the whole field of delegated legislation and envisages some differences between the secondary legislation emerging in Wales and that stemming in England from the same primary legislation. Anyone who doubts that need only look at Clause 26 of the School Standards and Framework Bill which gives considerable latitude to education authorities in Wales in implementing government policy.
Shortly before this debate, we received the 18th Report of the Select Committee on Delegated Powers and Deregulation. The committee expressed its concern and drew the special attention of the House to its comments on the provisions transferring the exercise of existing legislative powers to the assembly and the new legislative powers conferred on the assembly. It also draws to the attention of the House the
832
exceptionally large number of Henry VIII powers in the Bill. So there we have the concern of the Select Committee. This is an area of considerable potential confusion and even conflict. Many people—including the people of Wales—would feel safer if it were made absolutely clear where the ultimate authority lies.
As the Secretary of State for Wales said on more than one occasion in the referendum campaign, devolution is an ongoing process, and that is clearly implied in the Bill. Future legislation will contain order-making powers, some of which will be exercised by the assembly. We have no idea at this stage what those powers may be in the future or how they will be exercised. But we know that there is no provision for the return of powers to Westminster, whatever happens—even if things go badly wrong; there is only provision for going forward. That is what one might call the ratchet effect.
There is provision for the Secretary of State to intervene if the assembly acts contrary to UK treaty obligations and there is a right of appeal to the Judicial Committee of the Privy Council if the assembly acts ultra vires and so forth. However, there is no encouragement to this Parliament or obligation upon it to give its protection or assert its supremacy should the need arise. The thrust of the Bill is to give the assembly as much independence as possible. I am not at all sure that that is the best approach that could be adopted. I would have preferred to see a more co-operative approach and more co-operative links between the assembly and this Parliament; that would have been helpful to both.
We value the unity of the United Kingdom and the supremacy of Parliament not only from an institutional standpoint but from the point of view of the affected citizen. One cannot forget—though the Government may wish to—that three-quarters of the electorate in Wales did not support the Government's devolution proposals. The inclusion of a reference to parliamentary sovereignty and primary legislative power may provide those people with the reassurance that they need.
To include the amendments purely on that account may be thought to be cosmetic. But at this point we do not know what circumstances could arise in future where the intervention of the UK Parliament may be called for. We know that circumstances arose in Northern Ireland where it was necessary to abolish the Stormont Parliament at a stroke, and I hope that the same thing never happens to the Welsh assembly. But such extreme circumstances are not inconceivable and should clearly be provided for in the event that this Parliament is called upon to intervene either by the people of Wales or by their representatives at Westminster. We should not be blind to the worst scenario. We could be held culpable if we were.
For all those reasons it would be a wise precaution to place a reference to parliamentary sovereignty on the face of the Bill, together with a clear and unambiguous statement regarding the power of Parliament to make laws for Wales. It may seem otiose now, but who can

833
guarantee that it will always be so? The addition of our amendments would reassure millions and help them to see the assembly in a proper perspective. I beg to move.
Lord Thomas of Gresford: With the greatest respect to the careful and lengthy argument of the noble Lord, Lord Roberts of Conwy, from these Benches we disagree with the amendments. The noble Lord said that some may feel that the amendments are otiose and unnecessary; I include myself among that number. A principle not to include otiose and unnecessary language in any form of statute should be followed in all legislation.
The noble Lord referred to the analogy of the Northern Ireland legislation, in which similar clauses are included. It is a false analogy. It may be necessary to make statements of this sort in a community where a significant number of people question the sovereignty of the United Kingdom Parliament, but that is not the case in Wales. Who are the people who worry, who need reassurance, who will not feel safe unless these words are included in the Bill? I do not meet them in the Wrexham Rugby Club or the pub in Gresford. I have never heard anybody express any worries of that nature.
The noble Lord also referred to anxieties about secondary legislation. He said that we show concern in this House because there is no adequacy of scrutiny. We on these Benches have always shown concern in relation to the lack of scrutiny of legislation that is brought before these Houses of Parliament. That is one of the reasons why over the past 30 or 40 years we have supported the need for devolution and for a domestic parliament where proper scrutiny can take place of legislation that affects the interests of the people of Wales. We oppose the amendment.
Viscount St. Davids: I have considerable sympathy, particularly for Amendment No. 1. I should like to pick up on the point made by the noble Lord, Lord Thomas of Gresford, when he said that we do not need redundant or superfluous wording on the face of the Bill.
This Bill is unlike any other that has come before your Lordships' Chamber pertaining to the government of Wales for 426 years. It sets up a completely new form of administration for Wales for many aspects that govern the lives of Welsh people. It is different from the majority of Bills that will come before this Chamber. We should recognise—a point made by my noble friend—that half the people of Wales did not, for one reason or another, take part in the referendum. A great number voted against these proposals. They would be reassured by the wording in Amendment No. 1. I take that further and say that there are those of extreme tendency who need to be reminded that that is as far as these proposals go, and therefore we need Amendment No. 1.
Lord Simon of Glaisdale: I spoke on the referendum Bill relating to Wales. I did not speak on the Second Reading of this Bill because many others whose connection with Wales was far closer could and did speak with great authority on the matter. But perhaps
834
the Committee will allow me to make a few general observations on the constitutional and parliamentary considerations which have relevance to the Bill generally, the amendments generally and Amendment No. 1 in particular.
The Government's manifesto was perfectly clear: they would hold a referendum and if that referendum, by a simple majority, answered yes, they would go ahead to legislate on the lines of the White Paper. That undoubtedly bound the Government to do what they said they would do, having obtained a majority, however exiguous. As has been pointed out, the majority was extremely narrow and that also gave cause for concern, even to those like myself who were in favour of devolution, partly on the ground of subsidiarity and partly because we found deeply moving the speeches made by the noble Lord, Lord Cledwyn, my noble friend Lord Elis-Thomas, the Minister, the noble Lord, Lord Hooson, and many others.
What did that tell me? In addition to the narrow majority and the high degree of abstentions, the geographical division was disclosed by the voting, both economic and social. That narrow majority was secured after massive intervention and propaganda—by no means improper—by the Government and by the Prime Minister's great personal popularity being thrown into the struggle.
The answer being yes, the Government were bound to go ahead; but Parliament was not bound in any way, and no one can pretend that it was. Moreover, the position was difficult for the Government's supporters in the House of Commons. Even if they were less docile than they apparently seem to be, they too had endorsed the manifesto and it was very difficult for them to go against what the Government were proposing. But that means that the parliamentary responsibility falls with particular weight on your Lordships' House, and your Lordships are bound to go ahead, bearing in mind that there was, on analysis, no majority at all for the White Paper.
It was a great pity that an amendment put forward by my noble friend Lord Elis-Thomas and myself on a referendum was rejected by the Government. It would have shown quite clearly what proportion of the yes vote came from those who supported the White Paper and what proportion came from those who regarded the White Paper as merely a step forward to independence. The same problem arises in the Scottish case. However, the Government having chosen, as I am afraid they so often do, to fudge the question, we can only guess what majority was really against the White Paper. It certainly was a majority.
What are your Lordships to do in those circumstances? A few years ago there used to be talk of a manifesto mandate. There have been occasionally claims of that on devolution Bills but not very often. I think it is now accepted that a vote for a party does not endorse in any way constitutionally the contents of the manifesto. Therefore, the responsibility of your Lordships, as was pointed out at Second Reading, is primarily scrutiny, but on this Bill it goes very much further. All too often it seems to be taken that

835
democracy and majority rule are interchangeable terms. That is not so. The wisest thing that was ever said by a statesman about the nature of democracy was said by Clement Attlee. He said that democracy does not merely mean government by the majority but government by the majority having regard to the interests of the minority. That is what I think the noble Lord who moved the amendment has in mind.
It seems to me that your Lordships should incline to the approach of the noble Lord, Lord Roberts, but, on the whole, even though it seems to fit in with the approach that one would have to have regard to the interests of the minority, it does not really go far enough. In the first place, as has been said, this is a completely unnecessary amendment constitutionally. Your Lordships would not be legislating at all unless the legislative superiority rested at Westminster. However, there is another reason, which was referred to obliquely at Second Reading. This is an Act of devolution and it should not be ungenerously carried out. I fear that if the amendment were carried it would seem to be a niggling reservation on what I think by now is a consensus that the Bill should go ahead—that appeared clearly throughout the Second Reading debate—with any necessary amendment in order to preserve the true interests of the minority. The true interests of the minority are not in any way served by the amendment before the Committee. It seems to be an ungenerous gesture for your Lordships to be making. I hope that the noble Lord will not press it to a Division.
4 p.m.
Lord Elis-Thomas: My noble and learned friend Lord Simon should not seek to apologise for intervening in this debate. After all, I believe he has a distinguished record of military service with the RWF. One cannot know of a more Welsh institution than that.
I agree with his remarks and wish to emphasise that the Delegated Powers and Deregulation Committee refers in paragraph 5 of its report to the obvious fact that the Westminster Parliament will remain the supreme legislative body for Wales. Therefore, there is no need to rehearse that point on the face of the Bill. As my noble and learned friend indicated, there are issues here of subsidiarity. It is important to understand that a national assembly will have a responsibility for the whole of Wales in terms of delegated legislation and the administration of transferred functions. It is important that the granting of that subsidiary power to the national assembly should be done generously and without the dark sense of foreboding of the noble Lord, Lord Roberts of Conwy, who uncharacteristically lapsed into his worst Presbyterian past. He brings to the Committee dark hints of foreboding of a Welsh assembly in a state of collapse which might require rescue by Westminster.
The policy of subsidiarity, which I understand to be warmly endorsed by Christian Democrats throughout Europe, is one I warmly commend to the noble Lord, Lord Roberts. Indeed, I thought he always believed in it. However, he is taking a particular line on the Bill and I suppose that we should be sympathetic to him because of that. What concerns me more than the words in the amendment that the Parliament of the United Kingdom
836
is to make laws for Wales is how the Parliament of the United Kingdom is effectively to make laws for Wales in the context of the Bill. The issue we face is how we turn the system of delegated legislation which was initially designed for the execution of policy by different Ministers in different departments into a scrutinised body of delegated legislation for a subsidiary, delegated legislature. But we shall return to that issue on another day.
Lord Crickhowell: I did not intend to take part in this debate but when I heard the noble and learned Lord, Lord Simon of Glaisdale, I thought I was making an error in doing so. I was tempted, to begin with, to rise to my feet, as on a number of occasions before, by the speech of the noble Lord, Lord Thomas of Gresford. He spoke about the redundancy of the proposed wording. The noble and learned Lord, Lord Simon of Glaisdale, quite correctly said that it was not necessary constitutionally.
However, I could not help remembering that not so very long ago when we were debating the Welsh Language Bill, I and, I believe, the noble Lord, Lord Elis-Thomas—and, I suspect, the noble Lord, Lord Thomas of Gresford, and his colleagues—argued that there was a case for inserting some words in the Bill although they were not strictly required. It was thought to be right on that occasion to say something which was firm and clear about the status of the Welsh language. There are occasions when it may be helpful to say something that is not strictly necessary in order to inspire confidence.
Let us make no mistake about it. I am absolutely clear that this Bill deserves support now, for the reasons that I set out at Second Reading. We have to gain the confidence of the Welsh people, and in some respects it may be necessary to strengthen rather than weaken the legislation. But there are issues of confidence to be overcome. Therefore, there may well be a case for wording of this sort.
That good Anglican, the noble Lord, Lord Elis-Thomas, spoke about my noble friend's Presbyterian sense of foreboding. As I came into the Chamber today I opened an envelope which contained a journal which I do not frequently read. Indeed, I am not at all sure that I have ever read it before. It is entitled welsh democracy review. Apparently, this is the third issue. In the first article, which speaks about this Bill giving responsibility without power, it says,
"The National Assembly of Wales is being given responsibility without power. Unless there are radical changes early in its life ensuring that it has the resources to meet its aspirations, widespread political disillusion seems inevitable—with incalculable consequences for the future of Welsh democracy".
So there are others in very different positions who have dark forebodings.
This is what really tempted me to my feet. The journal goes on to say,
"In short, the Government of Wales Bill is no more than a start. Wales will not become a full, modern democracy until it has secured all the items on the political shopping list above".

837
The first item on that shopping list is primary law-making powers. The magazine contains invitations to join a "Parliament for Wales" campaign. It seems to me that when there are others already actively campaigning for a parliament for Wales with extended powers of this kind—I need not weary the Committee with the further detailed demands of the campaigning group—it may be no bad thing to start this Bill by pointing to the supremacy of the Westminster Parliament.
That is so, particularly as this is a rather unusual Bill, in this sense. We begin by saying that we are going to set up an assembly in the first lines of page 1 of the Bill, but it is not until we reach Part II many pages later that we actually begin to say what the assembly is supposed to do. We have a great chunk of the Bill devoted to who shall represent it and the electoral system, but it is only when we get to Part II that there is a statement about the functions that are to be transferred by order.
For those reasons I do not believe that the wording of this amendment is quite so unnecessary as has been suggested. If we can give reassurance to the many of people in Wales who have worries about this Bill we will be rendering a service to Wales and those who favour an effective assembly.
4.15 p.m.
Lord Prys-Davies: There are others in Wales who need reassurance that this law will not be unmade. Many years ago we were taught that Parliament can make a law and that it can unmake it. This Bill is the creature of Parliament and in future Parliament could repeal it or a part of it. I must also mention to the Committee that there is also concern in parts of Wales that the Bill, or a part of it, could be repealed. Indeed, I have been asked to consider whether an amendment can be designed that will protect the national assembly in such a way as to inhibit the repeal of this Bill when it is enacted. I am forced to concede that that is not possible under our present constitutional arrangements. The doctrine of parliamentary sovereignty allows no legal limitation on that sovereignty. I am aware that many years ago a Commonwealth judge said, "Freedom, once conferred, cannot be revoked". I hope that this Bill will never be undone. However, I am conscious that that is possible by even a simple majority in parliament.
I believe that the amendment that the noble Lord, Lord Roberts, is pressing is unnecessary, uncalled for and, in my opinion and that of others, it is provocative and lacks generosity, as has been mentioned by the noble and learned Lord, Lord Simon of Glaisdale. I very much hope that the Government will not accede to this amendment.
Lord Thomas of Gwydir: I would like to support the amendment. It cannot be described as unnecessary; it is really necessary, for this reason. The Minister knows as well as anyone that the vast majority of the people in Wales believe in being part of a United Kingdom. The sovereignty of Parliament exists and is accepted by the
838
Government. Indeed, it has even been said that the unity of Wales in the United Kingdom will be strengthened by this Bill.
There is no doubt at all that there are people in Wales who are concerned about the process of this Bill. They can see that as time goes on demands will be made for changes and that the assembly will become nearer to a parliament for Wales. Indeed, people are already advocating that. There are many in Wales who are concerned about the unity of Wales and the United Kingdom. They would like to be reassured that, as this Bill is currently worded, there is no question of the sovereignty of Parliament not remaining. For that reason a simple amendment such as this can give that reassurance and I commend it to the Committee.
The Earl of Northesk: I support these two amendments. Members of the Committee will recall that at Second Reading I suggested that the Bill as it stands lacks constitutional glue. The amendments have the great virtue of providing some glue in stating the constitutional position in a clear, concise and unequivocal way. Many Members of the Committee have intimated that the amendments are otiose, and the Government agree with that position. At one level that may be true, but there is something more to it than that. The Committee will also recall my suggestion at Second Reading that it will be the interaction of this Bill with other measures of primary legislation in this Parliament which will determine the actual day-to-day legislative competence of the assembly.
This gives rise to two quite distinct concerns. Like my noble friend Lord Roberts, I cite the School Standards and Framework Bill as an example. As my noble friend has already said, this measure is loaded to the gills with order-making powers. Some are relatively mundane, falling well within the scope of what we would normally expect of subordinate legislation; others are more disturbing in terms of the way that they confer wide powers of detailed policy determination upon the Secretary of State; yet others are mechanisms by which manifesto commitments are intended to be delivered. It is reasonable to assume that legislative competence for these, in so far as they are currently intended to be exercised by the Secretary of State for Wales, will in due course be transferred to the assembly. That intention is writ large in Clause 127(6) of the School Standards and Framework Bill. Some may say that there is nothing wrong with that and that that is the whole point of devolution, but it is a little more complicated.
It is perhaps bad enough that the Welsh assembly will be empowered to fly in the face of the UK Government's manifesto commitments by virtue of its competence over subordinate legislation; for example, as the School Standards and Framework Bill currently stands, there is nothing to prevent the Welsh assembly, once established and once the relevant order-making powers are transferred, from adopting an entirely different class size limit—say, 35 or 36—from that which will apply in England. Whether or not it would do so is conjecture but, as matters stand, the reality is that it could.

839
While acknowledging that the noble Baroness, Lady Blackstone, gave some indication of the possibility that the Government may be prepared to state this manifesto commitment clearly on the face of the School Standards and Framework Bill, this nonetheless demonstrates the inevitable tension that is being built into the system. Unlike this House, the assembly will not be constrained by the Salisbury-Addison convention. Not only does this confer a superior legislative competence upon the assembly than that enjoyed by this House, but it also empowers the assembly to contest the UK-wide mandate of this Parliament. I do not wish to over-play it because it is an inevitable—some would argue desirable—consequence of devolution, but this is the first concern, which is in essence a purely political one. At the same time, this demonstrates the fiction of the assembly being confined solely to competence over subordinate legislation. That is necessarily a function of how order-making powers are framed in Bills considered by this Parliament. In this context it is worth noting the Henry VIII clauses on the face of the School Standards and Framework Bill, of which I detect three. As currently drafted, they are unconstrained and apply equally to both Wales and England. It is reasonable to assume that these powers will in due course be transferred to the assembly. In effect, such a transfer would confer primary legislative power upon the assembly. More importantly, there is an implicit and attendant risk that that transfer could—I do not say would—inadvertently give the assembly legislative competence over England as well as Wales.
I am aware that Clause 22 constrains the assembly so that it is bound to exercise transferred powers "in relation to Wales", but that constraint is not as effective as it may at first appear. We should not draw too much comfort from it. The Bill before us today does not change one particular aspect of our existing constitutional arrangement: its evolutionary character. As, when, and if, competence for Henry VIII clauses is transferred in future, it will be a matter of interpretation as to the scope of the available power. As these matters evolve the question will inevitably be asked as to where the primary source of statutory authority lies. In the example I have cited, will it be with the Government of Wales Bill or the School Standards and Framework Bill? We can quite legitimately worry that the assembly may well be drawn down the road of interpreting that it lies with the latter. It will, after all, have its own democratic mandate. That being so, the assembly could grant itself legislative competence over England. This therefore is the second concern: the constitutional one.
The government line with respect to the issue of sovereignty has been consistently one of saying that these amendments are otiose. No doubt the noble Lord, Lord Williams of Mostyn, will follow this line when he responds. If it were simply a matter of where sovereignty resides, I could be swayed to accept that argument. In all kinds of ways, as the Government argue, that is self-evident, but I suggest that the real issue before us is where the primary source of legislative authority is located. In stating the constitutional position
840
on this, the amendments, far from being otiose, and for avoidance of any doubt, are both important and necessary.
Lord Cledwyn of Penrhos: If we proceed at this rate, the Committee will take a very long time. The point is a simple one. I do not accept it. I draw the attention of the Committee to the words of Clause 1(3) at the very beginning of the Bill:
"The exercise by the Assembly of its functions is to be regarded as done on behalf of the Crown".
I would have thought that everyone should be satisfied by that.
Lord Hooson: I had not intended to speak to this amendment. I believe that it would be a political error to insert this phrase into the Bill. There has been devolution of powers to administrative boards and local government from Parliament for centuries, yet it has never been necessary to state in any Bill that Parliament is sovereign. The noble and learned Lord, Lord Simon, is undoubtedly right that this is unnecessary. To include this phrase is to invite trouble. Every Member of this House, every Welsh Member of Parliament and every council in Wales knows that Parliament is sovereign. If there is anyone who requires reassurance about whether there are sovereign Welsh dragons in the garden, breathing fire and slaughter, it can only be because those fears have been created by politicians. I believe that it would be a political error to insert this phrase. It suggests trouble and a means of division. As it is totally unnecessary and otiose, why on earth should we consider it?
Lord Dixon-Smith: I hesitate to rise, particularly in view of what has just be said. However, I should like to make just one point. With the exception of my noble friend Lord Northesk, this issue has been discussed as if it is simply a Welsh matter. Perhaps the dog of the noble Lord, Lord Crickhowell, that did not bark at Second Reading may be permitted a small growl. It must be made clear that this is a United Kingdom Bill to devolve powers from the United Kingdom Parliament to a Welsh national assembly. For the life of me, I have the greatest difficulty in seeing what problem there can be in stating that on the face of the Bill. The fact of the matter is that, as the noble Lord, Lord Thomas of Gresford, said, today we do not have to consider solely the views of the members of Wrexham Rugby Club or the Gresford Rugby Club. We have to consider what those views may be in five or 10 years' time or—heaven help us-50 or 100 years' time.
We have heard that there are already some strange views being propagated in Wales. Whatever we may believe about the sovereignty of Parliament, increasingly in today's society there are those who call into question the sovereignty of Parliament in various parts of the United Kingdom, and not exclusively in Wales. As a mere Englishman—I believe that the English can claim some responsibility for the integrity of the totality of the United Kingdom, and certainly for a very large part of it—I am enormously concerned that this matter could ever be called into question. In view

841
of the fact that our constitution generally is not written but is understood, and also in view of the fact that lawyers have a great deal of fun with "understandings" as opposed to what is written, I must say that I would support having this written very clearly in this Bill now.
4.30 p.m.
Lord Ellenborough: I, too, hesitate to intervene in this debate amid so many distinguished former Secretaries of State for Wales. I should have thought that the Government would be well advised to accept these amendment because they clarify the position and they confirm the supremacy of the Parliament of the United Kingdom. I would have thought there must be a danger of visibly increasing support for the SNP in Scotland, and future pressure there for independence must have some effect in Wales.
If I may say so, one feature of the various devolution debates in both Houses—and here I agree with my noble friend Lord Dixon-Smith—has been the scant regard shown for the English, who are, after all, pretty generous towards the Scots and the Welsh both as regards finances and representation at Westminster. In his otherwise admirable winding-up speech on Second Reading, the noble Lord, Lord Falconer of Thoroton, did not, so far as I can recollect, even mention the words "England" or "English", despite the intervention in that debate of several of my noble friend Lord Crickhowell's "English dogs", of which I was one, although I only barked very quietly. This amendment should go some considerable way to satisfying not only English doubts and susceptibilities but also, and most importantly, the majority of the Welsh people, who are, after all, pretty unenthusiastic about devolution at the present time. If this assembly is to work as a secure part of the United Kingdom constitution it must have the support of the majority of the Welsh people and the acceptance of the English.
I would say to the Government that they really should not be too ostrich-like in this matter. They will bitterly rue the day if, once this legislation is enacted and the Welsh assembly and the Scottish parliament are under way, they are faced with a war on two fronts, with growing Welsh and Scottish nationalism on the one hand and increasing resentment by the English on the other. There are, as has already been said this afternoon, a fair number of Welsh nationalists and other closet nationalists who make it all too clear that they would deny the sovereignty of the Westminster Parliament and they regard devolution as a springboard leading to further separation. So, for my part, I strongly support this amendment. It helps to clarify the position and provide some reassurance.
Lord Williams of Mostyn: Perhaps I could make one or two preliminary observations. First of all, the noble Lord, Lord Roberts of Conwy, reasonably asked what had happened to the political parties registration Bill, and the noble Lords, Lord Mackay of Ardbrecknish and Lord Henley, have made similar inquiries. I did say—I do not think those two noble Lords were present then but the noble Lord, Lord Roberts, was—that on Maundy
842
Thursday I had undertaken that the Bill would be ready soon after Easter. I did explain to your Lordships that on Good Friday there was the agreement on Northern Ireland matters and of course the resources of the parliamentary draftsmen had, rightly in my opinion, to be directed to those urgent matters. I can say that it is the Government's intention that the Bill on the registration of political parties should be published imminently.
I would echo, if I may, what I said at Second Reading, that any amendment which we regard as, first, consistent with the scheme of the Bill and, secondly, a genuine improvement would be carefully looked at. Perhaps I may also say with great respect that I believe that what the noble Lord, Lord Cledwyn of Penrhos, said has a good deal of virtue in it. Perhaps your Lordships will forgive me if I attend to the point of the amendment rather than rehearsing Second Reading speeches at any great length.
Questions were raised at Second Reading and in another place about sovereignty. It was said that the Solicitor-General, in his winding-up speech, did not refer to wider questions. That, of course, is wrong. I refer your Lordships to col. 1128 of Hansard for 21st April, where he specifically said:
"The Government believe that this is a step which is in the interests of both the people of Wales and the good government of the whole of the United Kingdom".
Indeed, I opened the debate by saying that this will strengthen the union, to which this Government remain adamantly and unshakeably committed. I do not think I need to repeat more than that.
We believe that these amendments are not necessary and we cannot accept them. We do not seek to undermine the sovereignty of this place, whether by means of this Bill or any other Bill. For instance, the Human Rights Bill was carefully constructed and crafted to meet the proper legitimate place of a sovereign Westminster Parliament, and everyone who dealt with it recognised what we had done. There is nothing in the Bill which is capable of calling into question the sovereignty of this Parliament. I entirely endorse what was said by the noble Lord, Lord Thomas of Gwydir. The overwhelming mass of those who live in Wales wish to see their future continuing as part of the United Kingdom.
As the noble Lord, Lord Hooson, said, this is simply a transfer of functions already exercised by Minsters to the assembly; no more than that. Noble Lords have referred to Section 75 of the Government of Ireland Act 1920 and to Clause 27(6) of the Scotland Bill, which is presently before another place. Both have statements similar to the spirit of the amendment contended for, but both convey powers to make primary legislation. That is a complete qualitative difference.
The Belfast agreement, to which I referred a moment ago, makes similar provision for an assembly with primary legislative powers. Therefore it is only right to make clear the relationship between primary legislation in Belfast or Edinburgh and that passed at Westminster.

843
This Bill, I respectfully repeat, conveys no such powers and there is therefore nothing to clarify. As Mr. Ancram said in another place, an identical amendment,
"would not affect the position either way".—[Official Report, Commons, 20/1/98; col. 870.]
It is easy to think that it might be a good idea to have a cosmetic face-saver on this Bill, but that is not the purpose of a Bill. The statute book is not the proper place to seek to allay phantom concerns, and indeed sometimes, as an unintended consequence, to raise fears, as the noble Lord, Lord Hooson, said, rather than dealing with them properly.
The noble Lord, Lord Elis-Thomas, chided the noble Lord, Lord Roberts of Conwy, very gently about gloom and foreboding. I must say that from my own experience I always thought that gloom and foreboding were the most attractive part of life in North Wales. It certainly seems to be infectious because it has travelled all the way from Conwy to Abergavenny. The fact is that there is not a constant agitated thought, whether in the rugby club at Gresford or in the Pontllotyn branch of the Flat Earth Society as to what is actually intended by this Bill. It is perfectly straightforward. It is a transfer of functions which are presently devolved to the Secretary of State to a Welsh assembly, the principle of which throughout every one of the 35 speeches—I think it was—on Second Reading was accepted by the overwhelming majority of speakers. This amendment is not required and, being not required, it is not necessary.
Lord Roberts of Conwy: I am grateful to the Minister and indeed to all noble Lords who have participated in what I have found to be a very interesting debate. Of course we know all the arguments about otiosity and these suggestions being unnecessary. Nevertheless, a number of us feel very strongly that advantage should be taken of this opportunity in this Government of Wales Bill to build upon the relationship between the assembly and this United Kingdom Parliament, rather than suggesting that somehow or other they should be kept as separate as possible. As we pursue our discussions on the Bill, we shall see more clearly the need for a closer relationship between the two bodies.
I was interested in many of the comments that were made. I was glad that the noble and learned Lord, Lord Simon of Glaisdale, called the late Lord Attlee in my support in part. But he also described the amendments as niggling reservations and I take his point very much to heart.
We are seeking to suggest—and it is not all "North Walesian" or Presbyterian doom and gloom—that things may not go as well as the great optimists of devolution hope. I firmly suggest that our action would be remiss and that we would be culpable if things did go wrong in the assembly and the assistance of the United Kingdom Parliament was required.
As the noble Lord, Lord Williams, assured us, nothing in the Bill calls into question the sovereignty of this Parliament. As no powers of primary legislation are transferred from this place to the Welsh assembly one can understand the difference between the Welsh
844
assembly, the Scottish parliament and the proposed Northern Ireland assembly and the need to differentiate between them by the inclusion of Clause 27(6) in the Scottish Bill.
Extensive secondary legislative powers are being transferred to the assembly and that is causing us a great deal of concern. Even the noble Lord, Lord Thomas of Gresford, expressed his concern about the nature of delegated legislation and its extension. As my noble friend Lord Northesk suggested, there is little difference between primary and secondary legislation in, for example, the School Standards and Framework Bill.
A considerable number of Henry VIII clauses in the Bill cause great concern. Nevertheless, in view of the Minister's comments, we shall not press the amendment to a Division. We shall be watchful as we proceed with the Bill and on Report we may return to the broad thrust of the amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 1 agreed to.
Clause 2 [Membership]:
Lord Mackay of Ardbrecknishmoved Amendment No. 3:
Page 1, line 15, leave out from ("constituency") to end of line 16.
The noble Lord said: The amendment brings us to a discussion on the voting system. Not only are the Government proposing to change the constitutional arrangements of the United Kingdom vis-à-vis England, Scotland, Wales and Northern Ireland, but they are proposing to turn upside down a voting system which I and many other people believe has served this country and the rest of the English-speaking world extraordinarily well over the long march of history. The Government intend to replace that with a system of proportional representation or, as I would prefer to call it, one of the various methods of fiddle voting on which some people are so keen.
The amendment deals specifically with removing from the Bill those parts which would introduce proportional representation. If I were successful the Bill would have a first-past-the-post electoral system for the Welsh assembly. I would not like it to be thought that I have not realised that the Minister will say that I am looking a gift horse in the mouth, but I have to tell him that the weakest of all arguments for one or other electoral system is that your particular party gains advantage from it. That ought not to be the argument which convinces anyone to choose one electoral system as opposed to any other.
That is why, when the Labour and Conservative Parties stood as one in favour of a first-past-the-post system, the Liberal Democrat Party was alone in wanting to change it. And it wanted to change to one specific form of PR which it believed would fiddle the votes in the most advantageous way for that party. I believe that the true voting system is the one which we have had in this country for many years—
Lord Thomas of Gresford: The noble Lord said that we were anxious to fiddle the vote. Will he explain

845
precisely what he means by that? Is he saying that the importance which the Liberal Democrats attach to proportional representation is a fiddle?
4.45 p.m.
Lord Mackay of Ardbrecknish: The point is that the argument in favour of one form of PR over another is usually put forward on the basis that the advantage may or may not be to the political party advocating it. In my view, and in the view of anyone who has studied the subject, I could put forward an electoral system which would present the Committee with any result it wished. Indeed, there are so many variations of proportional representation, which we shall debate later, that my argument would be adequately met by showing that the different types can lead to different results. That is why I used the word "fiddle" when I discussed proportional representation because it depends—
Lord Mackie of Benshie: Has the noble Lord noticed that in Scotland where proportional representation would not suit our party we are still advocating it?
Lord Mackay of Ardbrecknish: That has more to do with the noble Lord's party's cosying up to the Government and the fact that before the election they reached a pre-electoral pact on these matters. Oh, I have got them all up!
Lord Thomas of Gresford: Does the noble Lord agree that on his definition his government were complicit in fiddling the votes in Northern Ireland where they introduced proportional representation in local government some 10 or 12 years ago?
Lord Mackay of Ardbrecknish: As the noble Lord will know, the problem in Northern Ireland is that there are particular and difficult circumstances—
Noble Lords: Oh!
Lord Mackay of Ardbrecknish: There are, and the ignorance of the Liberal Democrat Party about Northern Ireland is well shown by the fact that it does not seem to believe that there are particular circumstances. I see that the Minister is coming to its aid.
Lord Williams of Mostyn: Does that mean that if there are particular circumstances one is properly entitled to devise a system which will produce the result that will deal with those circumstances, otherwise known as a "fiddle"?
Lord Mackay of Ardbrecknish: The point about Northern Ireland is that for better or worse a significant minority of the population there do not wish to be members of the United Kingdom. They find it difficult to operate within the United Kingdom system. As a result, the previous government introduced a form of proportional representation to give that particular minority—not a political party minority, but one which wished to belong to another country—some say in the
846
government of Northern Ireland. It must be said that our previous efforts to do so and to put in place a system which worked have not proved particularly successful. We all hope that the new system devised on Good Friday will prove to be more successful and that the two communities will live together. However, I do not believe that for most of the rest of the world there are such divisions inside the one society where a sizeable minority do not wish at all to belong to the nation state to which the majority belongs.
In any event, the situation in Northern Ireland is so special. If one looks around the rest of the English-speaking world, proportional representation is not used at all except in one country. I shall say a little about its rather unsuccessful and unhappy experiment over the past two years where the system which this Bill proposes has been tried.
The Bill proposes to create two classes of Members of Parliament or members of the assembly. Two-thirds will be elected in the conventional first-past-the-post system. The other one-third will be wholly unaccountable to the electorate as individuals. It will also transfer power from the individual voter to the political parties. It will add a complication to what I believe is a very simple, democratic system which has served us very well indeed.
The case for the first-past-the-post system is one which I fear is not being heard too clearly at present. Indeed, the commission set up by the Government has been told specifically not to consider the merits of the first-past-the-post system. It is there to consider only which variation, which different methods of fiddling, which different tune will be played on the proportional representation system. As I have said to the Chamber before, it seems to me odd that these people are entirely paid-up members of the proportional representation club and not one person will ask critical questions.
I have been told before that I should not worry about that because this commission is merely asked to suggest an alternative PR system. When the commission reports, I shall look forward with interest to hearing the Government's response. I am sure that they will say that that does not in any way negate the importance of first-past-the-post. Perhaps they will say that the commission has not studied the first-past-the-post system and is not arguing against it but is merely looking at the system of PR. The Government will say, "Here is our great commission of people who have concluded that PR is the way and this particular version of PR is the way". That is not what the commission has been asked to do. The noble Lord, Lord Williams of Mostyn, intervened during my remarks recently and I must say to him that his remarks on that occasion are being kept close to my heart for the day on which the commission reports in the autumn.
The first-past-the-post system clearly gives us accountability at constituency level and at national level. The accountability is clear: it allows the electorate to remove the governing party if it no longer retains its confidence. That is something which we experienced a year ago. Under the British system, the verdict is decisive. An unpopular government cannot be kept in

847
office by a minor party against the will of the electorate; nor can a minor party decide to change the government without going to the electorate. Therefore, there is accountability in the governing party.
It is interesting that during our consideration of the European Parliamentary Elections Bill, the noble Lord, Lord Williams of Mostyn, underlined the important difference between European parliamentary elections and elections to the other place and—dare I say it?—elections to the Welsh assembly and Scottish parliament. As the noble Lord pointed out to me, the European Parliament does not have a government arising from it. But of course, the other place does, as will the Scottish parliament and the Welsh assembly.
The noble Lord pointed out to me when we were discussing the European Parliamentary Elections Bill that:
"Different elections require different systems and the key determining factor is the nature and functions of the body or legislature that is being elected".
He added later that,
"the European Parliament, unlike our own, is not one from which a government is drawn".
The Welsh assembly will be an assembly from which a government is drawn, so to that extent it is more akin to the House of Commons than it is to the European Parliament.
The noble Lord went on to say:
"We take the view that electoral systems should be appropriate for the particular bodies being elected. Our Parliament has a very different function from that performed by the European Parliament and we believe that different considerations obtain".—[Official Report, 9/4/98; cols. 857–859.]
Again, when he summed up, the noble Lord said later in the debate:
It is not, I repeat, a Parliament from which a government is chosen".—[Official Report, 9/4/98; col. 899.]
I do not suppose for a moment that the Liberal Democrats would at all accept that argument as having any merit because they would like proportional representation regardless of whether or not the elected body creates a government. Therefore, it is important that we look at the Welsh assembly as being much more akin to the House of Commons in creating a government for Wales than to the European Parliament which does not create a government for Europe, although one never knows, the Liberal Democrats may be quite keen to do that one day.
The other matter is that accountability exists quite clearly. It is a direct accountability that the electorate can and does exercise at the ballot box. It can remove an unpopular party from power. That seems an important aspect of our system. Proportional representation systems can keep one party, usually a very small party, in power for ever and ever. It just shifts partners as in an elaborate dance and is never properly accountable to the electorate. It is interesting that in one or two countries where PR has developed, on occasions the larger parties have become so infuriated at the dictatorship of the minority that they have created coalitions between the larger parties to prevent the tail continually wagging the dog.
848
Therefore, there is accountability in government. There is also accountability of Members of Parliament who are representatives and not delegates. They are entitled, if not obliged, to use their own judgment once they are elected. If the electorate does not like them and the way they use their judgment, they can be thrown out at the next election. They are accountable to their constituents.
The important point is that they are accountable to all their constituents. Every Member of your Lordships' House who has been a Member of another place will know that is the case. If one is a Member of Parliament, one does not say, "No, you did not vote for me. Take your problem elsewhere". As a Member of Parliament, you are responsible to every one of your constituents. You must look after their problems and take up their cases. You must take up the issues which concern them. You are the sole representative of that constituency and that is an extremely important link.
The first-past-the-post system undoubtedly, over time, has given us stable and effective government in this country. The governing party has, by and large, had a working majority in the House of Commons and has been able to run its term safely through the course of a full Parliament. Our current system also enables governing parties to get their business through the other place. It tends to give the winning party a healthy majority. That is one of the aspects which advocates of PR do not like. They do not like the thought that the winning party has a healthy majority and is able therefore to give the country effective government with effective parliamentary scrutiny from the Opposition. Therefore, on that basis, it seems to me that first-past-the-post is hugely superior when it comes to selecting a government than any method of proportional representation.
As regards the representatives themselves, in the British system, although of course the political parties play a major part—and nobody would pretend otherwise—they must ensure the widest possible support for themselves if they are to win an election. A party cannot hope to win an election by promoting a narrow sectional viewpoint, as does happen in those countries with a PR system. Accordingly, each party represents a fair settlement between competing philosophical interests within the same large framework. In this country, we tend to call it a broad church and the two major parties—the Conservative Party and the Labour Party—have traditionally been that broad church.
As I said, each individual MP is exposed to that broad range of views because in his constituency, even within his own party—let alone outside—he must listen to the different views of the different parts of his own party. Therefore, it seems to me that the political parties, inside themselves, must reconcile what is sometimes a wide variety of interests. That is not a fault. I know that some people consider it to be so. I believe that our system, in which our political parties represent a wide spectrum, has served this country well.
Therefore, when it comes to choosing the governing party and selecting the constituency representative, I believe that our system is vastly superior to that in other

849
countries. I do not expect other countries to change to our system; indeed, I am not an evangelist in these matters. History and tradition dictate where you end up. We have ended up with first-past-the-post, and that is the sensible way for us to proceed.
As regards the various methods of proportional representation—fiddle systems, as I am going to call them, even though some people may not like me to do so—I must say that I find some of the systems—not necessarily the one proposed here—which give people second, third, or fourth votes while other people only have one vote, to be a negation of, "one person, one vote". I believe that one vote should count for each person and not that your second, third or fourth vote should count if you happened to vote first for a party which does not succeed in gaining many votes. It seems to me that that is something about which you have to make a decision, and live with.
Our system is clear. The amendments before the Committee today would in fact remove the AMS system from the Welsh Bill and would mean that the members of the Welsh assembly would be elected by the first-past-the-post system. If I am told that that would not be particularly beneficial to my party at present, my response to the Minister will be, "So be it". I do not believe that the narrow interests of my party in 1998 should necessarily determine how the electoral system of this country works. I give way to the noble Lord.
5 p.m.
Lord Harris of Greenwich: I am much obliged. The noble Lord is approaching the matter in a very high-minded way. Given that fact, can he say whether he intends to put himself forward as a Scottish Conservative for election where exactly the same electoral system will be proposed and where in fact, if we have the first-past-the-post system, the prospects of the noble Lord being elected are minuscule?
Lord Mackay of Ardbrecknish: I do not think that I am under any obligation to tell the noble Lord, Lord Harris, what my intentions are with regard to the Scottish parliament. Suffice it to say that I am one of the three people who are actually vetting all the potential candidates for the Scottish parliament. I am sure that they would find it a little odd if I were to be one of the candidates. I hope that that answers the noble Lord's question. Unlike, perhaps, one noble Lord in his party, I have no great ambitions at my stage in life to become a great player in the Scottish parliament. I was indeed a considerable player in your Lordships' House, but the noble Lord about whom I am thinking did not succeed in being a great ministerial player either in this or the other place.
I turn now to Amendment No. 14. It is linked here because it does in fact bundle properly with amendments regarding first-past-the-post. If you have a first-past-the-post electoral system, you do not need to register political parties. Amendment No. 14 would actually delete the mention of the registration of political parties. I was grateful to the noble Lord, Lord Williams of Mostyn, for telling me, through his earlier reply to
850
my noble friend today, that the registration of political parties Bill is imminent. I suppose that that is better than saying, "shortly". Moreover, having been given such a generous piece of timing, I suppose that I really must not be too ungrateful.
However, this legislation has become known, at least in the Mackay household, as the "invisible Bill". It is in fact central to the method for the Welsh elections, to the Scottish elections and, indeed, to the European parliamentary elections. Members of the Committee will notice that both the Welsh Bill and the European Parliamentary Elections Bill have already passed through the other place without this fundamental Bill ever seeing the light of day. The other place complained, but the Government just brushed those complaints aside. So the European Parliament Bill and the Welsh Bill are through, and the Scottish Bill has completed its Committee stage without this important little brick, which is necessary to build the PR system, being shown to any of us.
The noble Lord, Lord Williams of Mostyn, told me on Maundy Thursday that the Bill would be produced shortly after Easter. However, even the noble Lord must have realised that my definition of the word "shortly" was running out of days. Indeed, he told my noble friend Lord Henley, in another debate, that due to the difficulties being encountered by the draftsmen with the Irish business, the registration of political parties Bill would have to wait. What amazes me is the fact that a Bill, which I do not believe will have too many clauses, was not prepared some time ago. After all, it is central to the three systems of election. In my view, it should have been done some time ago.
However, I accept what the Minister said and understand that we will see the invisible Bill imminently. However, it is a Bill which I believe has dangers. It sends shivers up and down my spine, at least. If I wanted to start chipping away at democracy, I believe that my first step would be to register political parties and my second step would be to register only those of which I approved. I know that the Government will not want that, but I believe that it will require pretty careful drafting to ensure that that is not a possibility some time in the future. Perhaps that is why the Bill is proving so difficult.
All I can say to the noble Lord, Lord Williams, is that if this is yet another Bill to come this Session, the log jam that we are about to see, especially in this Chamber and in the other place to a lesser extent, will get even greater. However, on the basis that the noble Lord has given me that assurance—namely, that the Bill's production is imminent—I shall await such news daily. Whether there is another definition just about to come along after "shortly" and "imminently", is a matter that I leave to the noble Lord's fertile imagination.
The main point of the amendments is to advocate to noble Lords the continuation of the traditional British first-past-the-post system—a tradition which has served democracy in our country extraordinarily well over

851
many decades. That is more than I fear can be said for most of our continental friends who have indulged in various forms of PR from time to time. I beg to move.
Lord Thomas of Gresford: I listened with care to the even longer speech of the noble Lord, Lord Mackay, in introducing the amendments. Again, I regret to say that we do not support them. The noble Lord said that the Conservative government had made a fiddle in order to deal with the particular circumstances in Northern Ireland and that, therefore, proportional representation was acceptable if particular circumstances demanded it. But what are the particular circumstances in Wales as we look at it today? The particular circumstances are that the Conservative Party achieved 20 per cent. of the popular vote in Wales in the last election, but did not gain a single seat.
With most unusual and unexpected magnanimity, this Government have decided that the Welsh assembly should not be as adversarial as the Westminster system. They have decided that it should be inclusive and that all strands of political opinion in Wales should be represented in that assembly, with an electoral system being devised which would ensure that that happens. The result will be to give that assembly a far greater legitimacy than would otherwise be the case if only first-past-the-post were to be used in its elections.
Prior to the last election, there was an agreement between the Labour Party in Wales and the Welsh Liberal Democrats that the alternative member system would be employed in elections to the Welsh assembly if such a happening were to take place. On that basis, we agreed that we would support the Labour Government if that should happen; and it did happen. We stand by that arrangement. We will support the Government. Indeed, we campaigned with them in the referendum which took place on that basis, as did Plaid Cymru. I believe that it is fair to say that, if the Liberal Democrats and Plaid Cymru had not added their weight to that of the Labour Party, the referendum might have gone a different way altogether.
As the alternative member system was clearly spelt out in the Labour Party manifesto, and as it has since received the assent of the Welsh people in a referendum, I wonder why these amendments have been tabled at all. Surely there is no intention that the Salisbury doctrine should be breached; that there should be a vote on this; or that there should be any attempt to amend the legislation in the way that the noble Lord has suggested. If this is never to be voted upon, I must regard the time that the noble Lord has taken in expounding the first-past-the-post system as "muscle flexing", "shadow boxing" and as a warm-up for the true fight that will take place in the autumn. No doubt at that time the parties will adopt all kinds of different attitudes as regards the proposals.
I do not propose to take on the noble Lord as regards the disadvantages of the first-past-the-post system, save to say that between 1989 and 1997 the Conservative government never achieved a majority of voters in their favour at the ballot box and yet continued as an "elective dictatorship", to use the term that the noble and learned Lord, Lord Hailsham, has used about our constitutional
852
system. However, I shall not be drawn further into this argument. These amendments ought not to be put to the vote, in accordance with the Salisbury doctrine.
Viscount St. Davids: If you call into question the proportional representation elements in this Bill, you have to call into question the validity of the referendum. The referendum was held on a White Paper that promised a measure of proportionality in the voting system. If you call that into question, you would have to call into question the referendum. These can be regarded only as wrecking amendments.
Baroness Young: The establishment of proportional representation is a serious issue. I recognise that the issue arises in this Bill and in the Scottish Bill and that it is being considered generally. This is an enormous change. I recognise entirely the point that was made about the referendum. Although I did not read about the matter as closely as no doubt I should, I recognise that under the terms of the referendum everyone in Wales knew that they would have proportional representation. But how many people in Wales understand what proportional representation will mean for them? I have no intention of repeating the arguments of my noble friend Lord Mackay, with which I largely agree, or indeed answering the counter arguments. However, I know that everyone in this country likes to have a link with an MP. It is one of my regrets in life that I have not been an MP, but I have fought a number of local government elections. To that extent I have had "constituents", as it were. At that time I had an enormous postbag, and people came to see me about their problems. Under proportional representation that direct link will disappear.
I am sure that Members of the Committee have contacts on the Continent. Only last week I talked with a friend who is the headmaster of the British School in Madrid. He wanted to consult someone in the Spanish Parliament about a matter that concerned Madrid. However, that was simply not possible. No Member of the Spanish Parliament could answer his questions. We are entering a new world here. I shall not argue that every aspect of it will be for the worst. However, this point needs to be explained to everyone. It would be interesting to know whether the same number of Members of Parliament will remain in London. That is how I understand the position. Will people in Wales take their problems to their MP representing them in Westminster and bypass the assembly as they will not know who to contact given that the direct link will be broken? What will happen? I believe that the ordinary person in North or South Wales ought to have this matter explained to them. It should be spelt out in some way in an official document.
5.15 p.m.
Lord Crickhowell: I rise to make two brief points in response to points that have been made from the Liberal Benches and by my noble friend Lord St. Davids. The Committee will recall that we were presented with a pre-legislative referendum. Many of us voiced concerns that the issue was being put to the people of Wales

853
without their having had the advantage of hearing all the details of the legislation and discovering how significant it might be.
To be told now that if a matter was not mentioned in the Government's White Paper, or if it is amended subsequently, we can make no change in the Bill, is a pretty audacious statement and one that I find profoundly shocking. I am one who accepted the verdict of the referendum, narrow though the majority was. However, I accept it on the basis that we must make the assembly work and we must make it strong and effective. I do not believe that can mean that Parliament is not able to accept amendments either from the Opposition Benches or from the Government Benches because the matter has perhaps not been fully covered in a White Paper. I have not looked to see what references were made to the points covered in the great mass of amendments that have been tabled by the Government, but I do not believe that the Salisbury doctrine can be stretched to deprive us of the right to move amendments and perhaps to pass them in this Chamber.
Further, the noble Lord, Lord Thomas of Gresford, claimed that the assembly had been accepted by the people of Wales and the majority of 7,000 had been obtained because of the support that Liberal voters gave the Government. I wonder whether he has studied the post-referendum academic investigation which I believe was carried out by academics in the University of Aberystwyth on behalf of one of the bodies that studies the results of elections, which noted that although there was a marginally higher turnout of Liberals than of Labour supporters, 74 per cent. of those Liberals voted "No". I wonder therefore on what basis the noble Lord, Lord Thomas of Gresford, presses his point with such considerable audacity.
Lord Harris of Greenwich: I hope I may say a few words. I think it is about time we had a few words. As regards the point made by the noble Lord who has just sat down, what does he think the Salisbury doctrine meant? The Salisbury doctrine meant that the Conservative Party—which then, as now, had an overwhelming majority in this Chamber—would not use that majority to defeat the Government on issues which had been spelt out in the Labour Party's election manifesto. That is what the Salisbury doctrine means. Therefore to pass an amendment of this kind would be to undermine totally the undertaking given on behalf of the then Conservative opposition, which as I understand it remains the position of the Conservative Party. The noble Baroness, Lady Young, was concerned—I understand this concern—that a large number of people in Wales would not understand the possible complexities of a proportional representation system. In that case, why did the people of Northern Ireland find it quite so easy?
Baroness Young: I did not say that they would not understand the complexities. I said that I did not think they had understood that they would lose the direct link with an MP. That is quite a different issue.
Lord Harris of Greenwich: I believe that in the Bill as drafted there will, of course, be Members for
854
constituencies. Therefore, the concern that the noble Baroness has expressed is entirely misdirected. The noble Lord, Lord Mackay of Ardbrecknish, spoke at rather substantial length. I thought once or twice that we were in the midst of a timeless Test match. I found it a little difficult to understand why he made that speech given that this matter had been spelt out in the Labour Party's election manifesto, as it was in my party's manifesto. He seemed a little modest when it came to a direct question of whether he would stand for election to the Scottish parliament which is to be elected on exactly the same basis.
The noble Lord, Lord Mackay, says that he is prepared to live with the argument that it is perfectly all right to allow a substantial minority of the people of Scotland and of Wales to be totally unrepresented in the House of Commons. I wonder whether good democrats necessarily all take quite such a dismissive view of the rights of the electorate. It seems to me highly likely, as another academic study has demonstrated, that if one was not to have some form of proportional representation in Wales, there would be no Conservative members in the Welsh Assembly at all. I would regret that because I do not believe it is right that a substantial block of the electorate has no elected representatives. I am appalled that noble Lords are prepared to get up in this House and say that they could live with that without the slightest trace of concern.
Lord Onslow of Woking: I have no particular wish to follow the tone of the noble Lord who has just sat down. I simply wish to ask two questions about the legislation on the registration of political parties which we have been promised and which is so essential with regard to this and other pieces of legislation now before Parliament. First, can we have an undertaking from Ministers this evening that we shall have an opportunity to see that Bill before the Report stage on this Bill? Secondly, can we have a guarantee that its provisions, whatever they may be in detail, will be the same for any elected body in any part of the United Kingdom, and that there will be no different rules of registration for political parties in Wales, in Scotland, in Northern Ireland, or in the rest of the United Kingdom?
The Earl of Balfour: Following on from what the noble Lord who has just sat down has said, and as Amendment No. 14 (seeking to leave out subsection (8) of Clause 4) is grouped with this amendment, may I ask the Minister whether he can tell me if there is any enactment providing for the registration of political parties or any directive through any statutory instrument? I think it would be helpful to find out how political parties are recorded. I hope we can have an answer.
The Solicitor-General (Lord Falconer of Thoroton): The noble Lord, Lord Mackay of Ardbrecknish, quoted my noble friend Lord Williams of Mostyn saying that you approach the question of what is the correct electoral system by what is appropriate for the particular body. The Government have said repeatedly in relation to a national assembly for Wales

855
that they want an assembly which is representative of all parts of, and all interests in, Wales. We are determined that the assembly will provide a focus for Welsh life and reflect the diversity of modern Wales. I understand that that diversity of modern Wales includes Conservatives. We want it to be an institution which commands the respect and support of people throughout Wales and which transcends differences between regions, cultures and political traditions. We want the assembly to encourage a new style of inclusive politics which will be more open, more accountable and more relevant to the people of Wales.
We believe that using the additional member system will help to achieve those objectives. We approached the question of the best system on the basis of what we hoped to achieve rather than simply by adherence to the existing system for the UK Parliament. The additional member system combines the traditional first-past-the-post system with an element of proportionality. The constituency element enables us to retain the close and effective link between the electorate and their representatives while the election of the 20 additional members will address any disproportionality that may occur in the constituency elections. May I deal with the point—
Lord Simon of Glaisdale: Will the noble Lord not accept that the additional member system is only one of the systems of proportional representation and it has particular disadvantage in that it yields power to the party managers, taking it away from those who are close to the electorate?
Lord Falconer of Thoroton: I accept that there are other systems. We believe that this is the most appropriate system for the Welsh assembly.
Perhaps I may deal with the point raised by the noble Baroness, Lady Young. She expressed concern that there would be no direct link between a constituent and his or her representative in the Welsh assembly. The system proposed involves 40 members of the new assembly elected by the same means as are the UK parliamentary constituencies. There will be a direct link, identical to that between an MP and his constituency and, on top of that, there will be 20 additional members introduced by the additional member system.
There will be no question of individual constituents not knowing to whom to refer a problem and there will be that direct link about which the noble Baroness was so concerned. So, with the greatest of respect to the noble Baroness, I do not think that there is anything in her point about losing the direct link.
The level of representation enjoyed by a party in the assembly should reflect, more or less, the level of support it has won across the country. The result should be an assembly which is truly representative of the range of opinions in Wales. In addition, the proposed geographic distribution of seats under the system will ensure that all areas of Wales are properly represented in the assembly and that no one area is able to dominate the affairs of the assembly.
The noble Lord, Lord Mackay of Ardbrecknish, made much of the point that the amendments that he was proposing were detrimental to the interests of his own
856
party. He said, "Look how high-minded I am". His amendments would be very destructive of the Conservatives because he knows, as everyone else in the Chamber knows, that they did not return one seat in the election in May 1997. Having clothed himself in this high-mindedness, he then did not deal one way or another with whether that was a good thing or a bad thing. Perhaps I may adopt the arguments put from the Liberal Democrat Benches to the effect that what is wanted is an assembly where all shades of opinion are reasonably represented, including that of the noble Lord's party. That is not an argument that he addressed one way or the other.
As the noble Lord also pointed out, the main beneficiary of the amendments would, of course, be my party. But in relation to the Welsh assembly we are concerned with a vision which genuinely has nothing to do with competing party political manoeuvres. We want to establish the assembly as an institution which will give voice to the needs and concerns of all people in Wales, and not only those who vote for my party. While accepting that there are other systems, we are nevertheless convinced the additional member system is the most appropriate method for electing an assembly which will achieve our goal of inclusiveness.
Lord Simon of Glaisdale: May I ask the noble Lord again: would the additional members chosen by the party managers be chosen by the managers of the Welsh parties or the managers in London?
Lord Falconer of Thoroton: It is a matter for each individual party to determine how they select those people who are on their list. We are not dealing here with how each individual party will handle the system. We are dealing with the system that is being set up. In the interests of establishing an assembly which is truly representative of the people of Wales, I strongly urge the Committee to reject the amendment proposed.
It was made clear that this system was to be adopted, both in the manifesto at the time of the election and before the referendum took place. The noble Baroness, Lady Young, said that perhaps the electorate did not understand the proposal. That point could be made in every case where a clear policy has been laid out, as this was, and accepted twice unequivocally by the electorate. I strongly urge the Committee to reject the amendment.
5.30 p.m.
Lord Davies of Coity: I suggest that the Welsh people thoroughly understood what they were voting for in the referendum for the Welsh assembly. It is true that the poll could be considered low, and that the majority was somewhat low. Nevertheless, the result had nothing to do with the first-past-the-post system and proportional representation. It was based on whether or not Wales should have an assembly.
Many people did not believe that Wales should have an assembly. Some voted against it; and some abstained. However, the question we have to answer here is that of individual representation by Members of Parliament on the first-past-the-post system. That somewhat defies

857
reality. Frankly, elections in this country have been run for a long time on party lines. The vast majority of people vote for the party and not the individual.
When considering representation of constituents by Members of Parliament, let us recognise another reality. The vast majority of people do not see their MPs; they do not ask MPs as individuals to represent them. Some do so, but not the majority. The majority vote for a government to represent them on the big issues that affect their lives—employment, the National Health Service and education. The Welsh assembly will be concerned with affairs that affect the Welsh people. Nevertheless, with the system of proportional representation, the representatives will represent the people in the European Parliament constituencies. Therefore there will be representation if individuals require it.
I believe that it would be wrong for this Chamber to try to frustrate or defeat what was contained clearly in a manifesto commitment at the last general election. If such amendments are pushed to a vote, they will be mischievous.
Lord Falconer of Thoroton: I am grateful to my noble friend for his intervention. I wish to make clear that I did not suggest for one moment that the Welsh people did not understand what they were voting for. The noble Baroness, Lady Young, expressed a view as to what the Welsh people might have thought. I do not adopt it.
While I am on my feet perhaps I may answer the question of the noble Lord, Lord Onslow of Woking, to which I did not respond. I apologise. First, the noble Lord asked whether I could give an undertaking that we shall produce the document before the beginning of Report stage of the Bill. I cannot give a formal undertaking to that effect. But I can say that it is extremely likely that the Bill will be forthcoming before the start of Report stage. If not, either I or my noble friend Lord Williams of Mostyn will give an explanation as to why. However, I very much hope that that will not be the position.
Secondly, the noble Lord asked whether the Bill would cover all elections. As I understand it, it will deal with those elections which relate to the putting forward of lists of candidates for the various party list elections. I do not know whether it will cover local government elections; I suspect that it will not. That is as far as I can take the matter at present.
Lord Mackay of Ardbrecknish: I am grateful for the assurances we have received again from the Solicitor-General about the registration of political parties Bill—or I was grateful until he returned to the subject. I had thought that "imminently" meant before we return to this Bill at Report stage. The noble and learned Lord will have to work hard to persuade me that we should have a Report stage of this Bill before we see the registration of political parties Bill. He would have to work hard, too, to persuade me that we should start the Committee stage of the European Parliamentary
858
Elections Bill before we see that Bill. However, I have little doubt that "imminent" means imminent. I accept the noble and learned Lord's assurances.
Perhaps I may say this to the noble Lord, Lord Davies. I am sure that the Welsh people knew what they were or were not voting for; about half of them decided that they did not wish to vote for the proposal. Half of those who voted were not particularly keen. So I believe that they knew what they were voting for. I am not sure that the noble Lord and I would agree on the conclusions that we would both draw from that.
As my noble friend Lord Crickhowell mentioned, we accept that however narrowly it was won the referendum was won. Perhaps I may say this to my noble friend Lord St. Davids. I do not consider this to be a wrecking amendment. The main proposition put before the people of Wales and Scotland was that they will have an assembly or a parliament. It is just possible that if the people of Wales had been asked to vote for an assembly elected by the first-past-the-post system, the yes campaign in which my noble friend played a part might have achieved a better result. My noble friend might contemplate that for a moment or two.
This is not a wrecking amendment. It is not justified to try to knock it down with reference to the Salisbury doctrine. There is a point to be debated. We have a longstanding first-past-the-post system in this country. I do not think that we should overturn it readily or quickly just because of some agreement the Labour Party rather foolishly made with the Liberal Democrats before the election. I much appreciate the interest of the noble Lord, Lord Harris of Greenwich, in my political career. I have indicated my position. I assure the noble Lord that if I change my mind I shall lose no time in making sure that he is among the first to know.
We shall return to the subject of proportionality, a subject about which the Solicitor-General spoke. I shall then show him that proportionality has as many definitions as there are fiddle tunes—and there are many of them! It is doubtful whether the method achieved in the Welsh Bill will deliver the same degree of proportionality that the method outlined in the Scotland Bill will achieve. However, we shall come to the amendment from the Liberal Democrats Benches and that of Plaid Cymru later. I shall not go into that.
I believe that our system has served us well. As I mentioned—I am not surprised that no one took up the point—only one country in the English-speaking world (if I may so call it) has gone over to PR. That is New Zealand. It is interesting that the National Party in New Zealand is considering whether or not to have another referendum and whether or not to abandon the system that it has had for a year or two. A report in the Daily Telegraph of 23rd April reported that business confidence has plunged; the economy has stalled; the currency has fallen sharply; and economic reforms, for which New Zealand was famous and for which it gained acclaim internationally, have all but ground to a halt.

859
The polls showed only 30 per cent. remained in support of the system. Mr. Geoff Thompson, the National Party president, said that the MMP system, which is close to the system we are discussing,
"has disappointed those who expected an environment of peace and goodwill to develop…That hasn't happened".
We have heard a little about that today. I shall be happy to eat a raw leek if the Welsh assembly is peace loving with no arguments and no political divide—nothing of that nature. It will amaze me. It will be the only legislature anywhere in the world that works like that in a democracy. I think that it was George Thomas who defended noise in the House of Commons by saying that if you want a silent legislature go and listen to the Supreme Soviet—in the days before the wall came down. If noble Lords believe that there will be no controversy across the political divide in the Welsh assembly, they will believe anything.
I turn again to New Zealand. Another National Party MP, Mr. Gavin Herlihy, said that the system which is close to that being proposed for Wales is the worst possible. Although consensus politics was inherent in it,
"in reality this degenerates into compromise and mediocrity".
I believe that we shall regret having moved down the proportional representation road. I do not think that it will do Wales any service.
I do not accept the argument that just because the Welsh electorate decided that they did not wish to have my party in any of their constituencies I should ask to change the system. They made a conscious decision to get rid of all my honourable and right honourable colleagues. In a democracy they had a right to do that. That is what the first-past-the-post system provides. However, I accept that the Government have argued for this proposal, both in their manifesto and in the White Paper. For the moment at least, I beg leave to withdraw the amendment.
Lord Thomas of Gresford: Before the noble Lord sits down, is he speaking for the Welsh Conservative Party when he says that he is for the first-past-the-post system, and for the 10 candidates who have already been adopted by the Conservative Party to fight these elections? Is he speaking for them, or for himself?
Lord Mackay of Ardbrecknish: I was about to say that that is a particularly silly question, but that might be unkind. I am speaking for my noble friends and myself on this amendment. I am speaking for the Conservative Party in Wales and in Britain; and indeed I shall address the same issue in relation to Scotland. The fact that we already have candidates in place for both the Welsh assembly and the Scottish parliament simply underlines the fact that we are a democratic party and that we shall fight elections on whatever basis they are arranged, even though we do not approve of that basis. That is what democracy is about. I appreciate that the Liberal Party perhaps does not understand that.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill.
Lord Simon of Glaisdale: Perhaps I may ask one technical question in relation to subsection (7):
"The validity of proceedings of the Assembly is not affected by any vacancy in its membership".
The assembly is a corporation, and is defined as such in Clause 1, and a corporation aggregate. I was not aware that a vacancy in a corporation aggregate could affect the validity of its proceedings. There must be many, many examples where there has been a vacancy, for example, in the establishment of a government department, a local authority or a statutory body, and where that body has still been able to act effectively. I merely ask Ministers whether, if they believe there is any question about this matter, they will look into it. If this draft subsection is unnecessary, it can only cause trouble. An unnecessary subsection of this nature lends itself to endless unnecessary and undesirable argument.
Lord Hylton: When the Minister replies, perhaps he will say whether there will be a quorum laid down for the assembly, and whether that will be in the standing orders or in some other place.
Lord Williams of Mostyn: The matter of a quorum would seem to be for standing orders. In respect of the point made by the noble and learned Lord, Lord Simon of Glaisdale, on subsection (7), I will certainly examine the matter that he raises, as I hope I always have done in the past, and respond to him as promptly and fully as possible.
Lord Simon of Glaisdale: I am most obliged to the noble Lord.
Clause 2 agreed to.
5.45 p.m.
Schedule 1 [Assembly constituencies and Assembly electoral regions]:
Lord Elis-Thomasmoved Amendment No. 5:
Page 78, line 11, leave out ("four") and insert ("five").
The noble Lord said: I am grateful to the noble Lord, Lord Mackay, for giving a taster of this amendment—though I would recommend that, when the noble Lord comes to eat his leek in Cardiff, I should serve it to him, parboiled, cooled and with a little vinaigrette rather than completely raw.
This group of amendments in my name and those of my noble friends on the Liberal Democrat Benches provides an opportunity for us to examine rather more closely the whole issue of proportionality. It also provides an opportunity to examine the role of the regional members, if I may so call them—the additional members elected from electoral regions. As we scrutinise that matter, it is important to ask the Government what are their future intentions in regard to the electorate from which those additional members are to come.

861
We know that the Euro-constituencies, which are the electoral regions for the purpose of this Bill, are due to come to an end before the next European elections. It is therefore important to have an indication as to whether it is the intention that these regions will continue to be electoral regions for the purposes of the national assembly, or whether some other electoral regions would be appropriate.
Personally, I commend the election of additional members on a regional basis. That will provide us with a further constituency basis in regard to the role of members. I fail to understand the question raised earlier by the noble Baroness, Lady Young, about the relationship between a constituent and a member being dependent on the fact that there is only one member. I see it as a rather attractive idea that a constituent might have recourse either to a constituency elected member or to a regionally elected member on the party list should a constituent or member of the public wish to take up any issue. In regard to the noble Baroness's remarks on the Spanish Parliament, I have never found any difficulty in relation to any member of the Cortes or the Senate of that parliament being able to raise any issues. Indeed, it would be difficult to prevent my Catalan colleagues in both of those houses from raising any issue—on education or any other matter.
The question of the role of the additional regional members is an important one for this place. It is relevant to rehearse it briefly in this debate. I do not want to see us create a two-tier membership. That seems to be the hint emerging from the noble Baroness: that somehow the first-past-the-post members would have a more realistic mandate because they would be somehow closer to the electorate than those on the party list. But surely those of us who will vote, and use our second vote for the list, will be similarly electing a member and creating a mandate for that member, as would be the case under the first-past-the-post system. The fact that the constituency is to be the same as the Westminster constituency for a member of the national assembly elected on the first system, and that there will be another regional electoral district for the other member, is beneficial to democracy. It implies a multiplicity of experience brought to bear by members representing different areas, although those areas will overlap.
That brings us to the question of the role of regional, or additional, members in relation to regional committees. Regional members representing regions might well provide excellent members for regional committees, thus giving them a further representative role. That is the reasoning behind this set of amendments; namely, that we should have more additional members but within the general parameters of the White Paper and the referendum.
I know that the Government might say later that the number 60 is sacrosanct because that is the number in the White Paper. The noble Lord, Lord Mackay, is still referring back to the question of the result and the figures. In relation to this whole debate, I would say this to the noble Lord. If we all accept the result, then we accept it. But we need to accept the political lessons from the result; namely, that there is a need to make the
862
assembly as inclusive—to quote "government speak" on the matter, with which I entirely agree—and as proportionate and representative as possible. For those reasons, I suggest that the numbers in our amendments, whether we take my five or my noble friends' six, provide for greater proportionality.
If we examine the Scottish system—to anticipate what the noble Lord, Lord Mackay, may say on this matter—the greater numbers and the greater split between the first-past-the-post members and the regionally elected members provides for greater proportionality than in the Welsh model.
Perhaps we may consider the calculations made on the basis of the results in previous elections and apply them to a potential assembly election. We can see that the present proportionality, together with the present calculation of the AMS system—to which we will come in later amendments for debate tonight—provide an imbalance in favour of the larger parties. There is a "big party" bias in the d'Hondt allocation system which would be reflected in the projected results in Welsh constituencies with the present numbers of members.
That affects the party of Wales, Plaid Cymru, in that as a party we would not be as proportionally represented, certainly in South Wales, under the present additional member system. However, with the allocation of further members, it might be possible to allow for the Green Party, Plaid Cymru, the party of Wales, and the Liberal Democrats to be more fairly represented.
I do not make those points for party reasons but because I wish to ensure that the assembly has as broad a spread of representation from as many political parties as possible. I hope that there will be Conservatives there. I shall not name which of the 10 selected members I might prefer to see there, it is a matter for the electorate. I am sure that Mr. Richards will be there, we hope Mr. Andrew and some others will also be there. Whoever it may be, it is important that they feel able to play a part and have a proportional share of power in the bodies. Similarly with the Liberal Democrats, and particularly the Green Party. I would not be at all averse to seeing the occasional independent member from certain regions of Wales represented in the assembly. If we are to have that facility, we need a stronger form of proportionality than is before us at present. Therefore, I beg to move.
Lord Thomas of Gresford: It is fortunate for me that I follow the noble Lord, Lord Elis-Thomas. I shall speak to Amendment No. 6, in my name.
The noble Lord, Lord Mackay of Ardbrecknish, has already pointed out that the provisions in the Welsh Bill for proportionality do not match those in the Scottish Bill. In that Bill there is a ratio of four constituency members to three list members. In the Welsh Bill it is two to one. Consequently, the proportional element in Wales will not be as strongly felt as it will be in Scotland.
I see no reason that that should be the case. That is why it is proposed that we should have 40 elected members for the 40 constituencies in Wales and 30 elected proportionally by the list system. That is the

863
purpose of my amendment. I endorse much of what the noble Lord, Lord Elis-Thomas, said but I wish to make this point. In order to make the various committees effective and make them fulfil the function for which they are designed, there must be manpower, or womanpower, and a proper balance. The Bill provides in Clause 58(5) that in the subject committees,
"the balance of the parties in the Assembly is reflected in the membership".
There are six subject committees. The subordinate legislation scrutiny committee is covered by a clause to the same effect, Clause 60(2), which states that the Committee shall be elected,
"so as to secure that, as far as is practicable, the balance of the parties in the Assembly is reflected in the membership of the committee".
The same provision goes for the audit committee, and there are other committees on which members of the assembly will have to serve. In addition to having a balance of parties, it is to be hoped that on the six subject committees and on all the other committees, as well as the regional committees, there should be a balance of interests from all parts of Wales. That represents a huge amount of work for every member of the assembly. But if, for example, a smaller party were to return 10 members, as opposed to the larger party returning 35 to 40 members, Members of the Committee will appreciate that the workload on the individual members will be considerable. They will have to play their part in sitting on each of the committees in order to maintain the party balance.
It is for practical reasons and to make the committee system effective with committees that support the executive of the Welsh assembly, that we suggest that, as in Scotland, it would be sensible to increase the numbers of members to 70 rather than 60 and to include the same proportionality for Wales as there is in Scotland.
Lord Mackay of Ardbrecknish: As the noble Lord, Lord Elis-Thomas, mentioned, I gave a foretaste of this discussion. I had better not say it is part of the "fiddling around with the PR system"; perhaps I had better say "twiddling around with the PR system" or I may have the Liberal Democrats on their feet again. This is the kind of twiddling that inevitably PR invites. If we twiddle it a bit one way, we get a slightly different result and if we twiddle it the other way the result is different again. If we give it a great big twiddle, we can turn the results on their head.
The noble Lords, Lord Elis-Thomas and Lord Thomas of Gresford, and I are at one on this. Four additional members per European constituency is not enough to gain necessarily—although it may gain occasionally—any kind of vague proportionality. One of the problems is that there are conflicting philosophies, conflicting arguments, which have to be compromised. The purest form of proportionality is simply for everyone in Wales to vote for the party of their choice. It is then for the mathematicians to get out a simple calculator and work out what percentage of vote it is and what percentage of the size of the assembly it represents. Then the mathematicians can say to the
864
Labour Party in Wales: "There you are, you can have 30 seats". It would be the same for the Conservative Party, one hopes. I had better watch that I do not get more than the number of seats in the calculation, but I am being realistic. The Labour Party may have half, one would say to the Conservative Party: "You can have 15". Plaid Cymru could have 10 and then whatever is left is for the Liberal Democrats. That is the purest form of PR but it has no constituency link. So if we wish to try to marry the proposals, we must make compromises.
The one thing about the system chosen in the Welsh Bill is that it makes a considerable compromise in the direction of the first-past-the-post seats. The Scottish system of seven additional members in each European seat achieves in many cases quite close proportionality, although not in every case and not exact proportionality. The same is true here. I considered some of the Welsh constituencies on the basis of the last election, and some are quite wide of the mark with four extra members on the basis of proportionality. The Committee might think that I was coming to the conclusion that either the noble Lord, Lord Elis-Thomas, or the noble Lord, Lord Thomas of Gresford, was right.
My concern, however, is that the proposal adds members to the Welsh assembly and therefore costs to the Welsh budget and therefore less money for other services in Wales. The noble Lord, Lord Thomas of Gresford, would have 10 additional members of the Welsh assembly. That would add up to quite an additional cost, year on year, which would have to come out of either the health budget or the education budget.
The noble Lord, Lord Elis-Thomas, is mindful of that and seeks only five extra members. One could address the problem in a slightly different way if one were prepared to work inside the envelope of 60 members and move away from Westminster constituencies and even European constituencies. It seems pretty irrelevant to me that in both the Bills we are dealing with European constituencies when there is another Bill before us which will make the European constituencies obsolete and out of date. It seems odd that we are using European seats.
If we had four seats in Wales—and I can see the argument for that—it would match the regional committees, to which I shall come later. There is a strong argument, which perhaps the Government will consider, for matching the additional member seats to the regional committees. Then there would be a good link between the regional committees and the additional members. The additional members could ensure that they represented the regions. It would go some way towards increasing the top-up; it would be increased by one which would undoubtedly improve the proportionality.
My problem in relation to increasing the number of members of the Welsh assembly is that when I look at page 22 of this interesting document—The National Assembly for Wales—and see the timetable, it indicates that it will not be the most overworked organisation on earth. In fact, the assembly will meet in plenary session but once a week and committees twice a week. I do not believe that there is a huge amount of work to be done

865
and the more people, the less each of them will do. I am not persuaded therefore that we should increase the numbers.
The point of the noble Lord, Lord Thomas of Gresford, in relation to more members helping the committee system sets aside the fact that the Government made a major change in the other place and agreed that the Welsh system should be on a Cabinet-government model and not on a local government committee system model. We welcome that, though I am not sure that the noble Lord, Lord Thomas, does. He seemed to wish for the committee system to be introduced.
The Government made changes in the other place, for which I doubt they received referendum mandates and I say to my noble friend Lord St., Davids that that was not part of the White Paper though I make no complaint about that; it is up to both Houses in discussion to see how matters can be improved and this is an improvement. Because of those changes, the argument that the committees may need more members begins to fade away when it is no longer a local government system. The Government have therefore dug themselves into a hole of their own making. I am interested to hear what defence will be put up.
My difficulty in supporting either of the amendments is that I cannot see any justification for increasing the number of Welsh additional members and therefore the total size of the Welsh assembly. As I indicated, there are other ways of tackling the problem, one of which would be to reduce the number of large constituencies and thereby have more additional members per constituency. That would help, though it would not entirely remove the lack of proportionality that this system brings about.
6 p.m.
Lord Falconer of Thoroton: These two groups of amendments put forward parallel proposals. The proposal of the noble Lord, Lord Elis-Thomas, increases the number of members from 60 to 65 by increasing the element of regional members, and that of the noble Lord, Lord Thomas of Gresford, increases the number from 60 to 70. Two separate arguments are advanced in support of both proposals. First, it is said that it improves proportionality; secondly, it is said to assist in relation to the discharge of the workload.
As the Government made clear, they believe that 60 members is an appropriate size for the assembly. We expressed that view in our White Paper and that view received the endorsement of the people of Wales in the referendum on 18th September last. Therefore, if we increase the number of assembly members at this stage, it would constitute a major departure from the proposals submitted to and supported by the electorate.
Perhaps I can deal with the point raised by the noble Lord, Lord Thomas of Gresford, in relation to workload. We do not accept the view that there will be insufficient members of the assembly to enable it to carry out its tasks efficiently and effectively. We want all assembly members to have a meaningful and responsible role. It
866
will be for the Standing Orders Commission to advise on the internal workings of the assembly, but I do not envisage there being numerous large, cumbersome committees involving most members in little more than a never-ending round of committee meetings. I am confident that a 60-member assembly will provide a challenging workload for members without overburdening them.
The noble Lord, Lord Thomas of Gresford, referred to the problem of how the small party will deal with its commitments in relation to its committee membership responsibilities. That is always a problem in democracies. When there are small numbers of elected members, in so far as they must be represented on a specific committee their time will be more stretched than those parties which achieved more in the election and therefore have more people to spread around the committees. Therefore, with respect to the noble Lord, Lord Thomas of Gresford, that is not a point with which any system could effectively deal.
We believe that our arrangements deliver proportionality. Although there is a substantial first-past-the-post element in the system, the balance we have struck is about right. It is premature to speculate on the result of the elections in 1999 and the extent to which the distribution of seats in the assembly may or may not depart from the proportion of votes cast for each party. The Secretary of State made clear that the Government may look again at the electoral arrangements if, in the light of experience after 1999, they fail to meet our expectations. However, this is not the time to move from the arrangements endorsed by the electorate in the referendum and not much will be achieved by speculation as to what the result and the proportionality of that result may be when the elections come.
The noble Lord, Lord Elis-Thomas, raised a final point: will the Euro-constituencies continue to serve as electoral regions for the assembly after they cease to exist for European election purposes? The answer is yes. Paragraph 2(2) of Schedule 1 specifies those areas as electoral regions and they will continue to serve as such, subject to any modifications in relation to boundaries recommended by the Boundary Commission for Wales.
In the light of those remarks I strongly urge noble Lords not to press the amendments.
Lord Elis-Thomas: I am grateful for the response to this short debate. It has been an opportunity to rehearse the issue of proportionality and, as indicated, there may already be concern among many of us looking to the future pattern of the assembly that the structure may not be adequate to the task in hand. Indeed, my noble friend Lord Thomas of Gresford made that point clearly as regards the effectiveness of the committee system.
I should like to pursue one aspect a little further; that is, the question of looking again. I noted the commitment from the Secretary of State that he would look again at the electoral system if it did not prove to be adequate. It is important that the Government explain the electoral system clearly to the Welsh public—not that we are thick and do not understand what is going

867
on, as some Members of the Committee seemed to imply earlier; but we have a new system and therefore the effective use of both votes to maximise preference is an important message which it is in the interests of all parties in a democracy to advertise. However, will the Minister kindly come back on the question of when the "look again" may be appropriate?
Lord Falconer of Thoroton: The looking again will take place in the light of the experience of the 1999 elections. If and in so far as there will be a look, it will be after those elections. What will be considered is whether it delivers on the expectations described in the course of these debates. I hope that answers the noble Lord's query.
Lord Elis-Thomas: In view of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 to 8 not moved.]
On Question, Whether Schedule 1 shall be agreed to.
Lord Roberts of Conwy: The Government should be aware that there is some anxiety in Wales in relation to the size of the assembly. That was accentuated by the plans for the Scottish parliament and for the Northern Ireland assembly.
Most of us who are of Wales pay tribute to the work done by the Institute of Welsh Affairs, which has been involved in devolution for a considerable time. I hold a letter from the director, John Osmond, who feels that the minimum number required for the assembly to function effectively is 80. He says:
"This case, we believe, has been enormously reinforced by the recent Irish Agreement which will create an Assembly in Northern Ireland with 108 members. This is to represent a population of 1.6 million people".
The population of Wales is just under 3 million. The letter continues,
"There are, of course, special circumstances in the Irish case but, nonetheless, we believe there is an unreasonable disproportion in allowing Wales, with a population of just under three million people, an Assembly with only 60 members".
I think that Mr. Osmond and the institute undermine their case to some extent by saying that this creates a problem for operating the complex committee structure that will be required, as the Government have changed their mind on this issue and have gone for a Cabinet-style of operation which should require fewer people on the assembly committee system. Therefore, I believe that the Government have got the numbers about right, but that they should give a little more justification for the figure of 60 by way of membership compared with the 108 for Northern Ireland and the 129 proposed for the Scottish parliament.
Lord Williams of Mostyn: The schedule defines the constituencies and the electoral regions. There is a vast amount in the schedule that goes beyond the ambit of the remarks that the noble Lord has just addressed to the Committee. The schedule is vital if elections to the assembly are to proceed. A vast amount of the detail in the schedule deals with what one could call
868
nuts-and-bolts questions about reviews of the electoral areas and so on. It seems to me that the noble Lord has concentrated alone, if I take his remarks correctly, on numbers. In many ways, we have already had that debate because a number of noble Lords contributed to the proposition that it should be larger by either 10 or 20.
The noble Lord said—I am grateful to him for his characteristic generosity—that the Government have it about right. It is a question of judgment. Circumstances are different in Scotland and they are different in Northern Ireland. If one were a believer in perfect symmetry, the consequence would be over-rigidity. If we all believed in symmetrical constitutional arrangements, none of us could be sitting in your Lordships' House as none of us has had the benefit of being elected by anyone. When we first discussed this matter, the noble Lord, Lord Crickhowell—I hope I do not misquote him—said that he had discussed the issue domestically and that he had had advice from a higher source in the Crickhowell household that 60 was far too many.
Bearing in mind the modern history of Wales, we believe that, because of the kind of arrangements that we have been accustomed to and because of the necessity for inclusiveness and proportionality, we do not want too large an assembly. Things have been infinitely different in Northern Ireland and at this delicate time I shall not trespass into that area to raise any difficulties, doubts or further dissentions. But Northern Ireland's history of internal democracy over the past 25 years has been that, apart from at local level, there has not been any. For the reasons that were generally alluded to by the noble Lord, Lord Mackay of Ardbrecknish, there are differences there and they do not focus entirely on the proposition that some people in Northern Ireland do not wish to live in the Union. There are other aspects: religious differences, differences of educational choice, differences of political view and differences of view over the recent history of the island of Ireland since 1922 or so.
In the Bill we have focused centrally on what will work in Wales and on how we deal with the possibility that some in Wales might think that this is too large a gravy train for the old—I put this carefully—county council writ large. We did not want the old county council writ large; we did not want the monoliths, which is why we put forward the AMS system; and we do not want too large a body. But we think that, particularly when one looks at the careful work that NAAG has done—a non-party body which has given excellent advice to the Secretary of State—we have it about right. I cannot say that I would go to the stake, even if invited to, on 59 as opposed to 61. Sixty seems about right in the context of our experience and our knowledge of recent Welsh history. I cannot put it more definitively than that because, as the noble Lord, Lord Roberts, said, it is essentially a matter of judgment. I think we are in agreement. We have got it about right.
Schedule 1 agreed to.
6.15 p.m.
Clause 3 [Time of ordinary elections]:
Lord Falconer of Thorotonmoved Amendment No. 9:
Page 2, line 32, leave out from ("order") to end of line 36 and insert—
("() An order under subsection (4) may include any provisions modifying the operation of—

(a) the Representation of the People Act 1983 (or rules made under that Act), or

(b) any other enactment relating to elections of community councillors,

which the Secretary of State considers appropriate in connection with the postponement of polls for which it provides.").
The noble and learned Lord said: This government amendment should be considered in conjunction with the power which will be given to the Secretary of State under subsection (4) of Clause 3 to postpone the date of the ordinary elections of community councils in Wales. What we are proposing is that in circumstances where the Secretary of State deems it necessary to exercise his power to postpone the date of the community council elections, it may also be appropriate for the proper and effective conduct of those elections for him to make consequential modifications to the statutory procedures relating to community council elections.
It may help to clarify our intentions if I illustrate matters with an example. Next year there are due to be four sets of elections in Wales during the spring and early summer—elections to the assembly, the unitary authorities, the community councils and the European Parliament. The best solution would be to combine the assembly elections with those for the unitary councils on 6th May 1999 and to postpone the community council elections, which are also scheduled for that date, preferably to 10th June, the date of the European parliamentary elections. I should emphasise that the final decision on the new date for the community council elections has not yet been taken, but combining them with the European parliamentary elections remains our preferred option.
It has been pointed out to us, however, that despite the advantages in terms of cost and minimising the potential for voter fatigue, holding the community council elections on 10th June could present some administrative complications regarding the timing of the submission of nominations. If the community council elections are held on 10th June, the statutory date for the submission of the nomination papers would be 13th May, a mere week after the assembly and unitary elections. Elections administrators and their staff will then be heavily engaged in duties relating to the aftermath of the two elections held on 6th May. We are advised that it might be impossible for them fully to comply with their obligations in respect of the delivery of community council nominations.
A possible solution would be to make provision for the community council nomination papers to be submitted on a timescale implied by holding the community council elections at the same time as the unitary authority elections. The community council nominations would then be "frozen" for the elections to
870
be held in June. Candidates for the community councils would be submitting their nomination papers at the same time as unitary authority candidates, at a time when returning officers would be geared up to processing nominations. The European parliamentary nominations are much less of a problem as far fewer candidates are involved.
Such a step would require a change to the timetable applicable to the conduct of community council elections as set out in the Local Elections (Parishes and Communities) Rules 1986. It would be a departure from the procedure laid down in legislation and so requires special provision. This amendment would give the Secretary of State the power to make that provision.
I have given but one example of where it would be advantageous to change statutory procedures for the effective conduct of elections which had been postponed. Doubtless there will be other examples depending on the circumstances in which community council elections may have to be postponed. Accordingly, the amendment is not specific, but ensures that provision is available to enable the Secretary of State is able to take action as appropriate. I repeat: this provision could be used only in circumstances where the Secretary of State had decided to postpone the community council elections and any changes must be appropriate in connection with the postponement. He may not decide to change any provision simply because he may have a mind to. The changes may be modifications only. The order-making power will not enable him to rewrite the rules governing the conduct of the community council elections. Once the assembly has been established, he will be able to exercise that power only if he has first consulted the assembly; so it too would be party to any proposal to make consequential changes to any related statutory procedure. In the light of that rather long explanation, I beg to move.
The Earl of Balfour: I am very happy with the explanation that the Minister has given. Will he look at the bottom of page 13 of the Bill? In Clause 23(3) there is reference to Section 3(4). Does that still apply? I am perhaps straying a little far ahead. In the last two lines there appears this paragraph,
"(c) Part VII so far as relating to the provisions specified in paragraphs (a) and (b)".
That covers several sections. I simply do not understand the words at all. It is a technical point, but will the Minister look at it now before we reach Clause 23?
Lord Crickhowell: I wish to probe a little. The Minister gave a very reasonable explanation. One can see perfectly well that there may be very good reasons for altering the dates of elections on practical grounds. However the more I listened to what he had to say the more worried I became, but not because I expect that anything the Minister intends to do will be in the least improper. He provided a series of combinations at which one might arrive. When I went to cast my vote in the London elections last week, I was struck by how significant it was that they coincided with the election as to whether we should have a London mayor.

871
If one has an election for one body in combination with another, that may have very considerable political significance. The point I am seeking to make is a very simple one. One can envisage a circumstance in which a Secretary of State, advised by the political party of which he is a member, might suggest that it would be helpful if an election for a particular body was held at exactly the same time as an election for another body.
I am not greatly comforted by the knowledge that he will have to consult with the assembly because it is quite possible that the Secretary of State might be of the same political party as those who presided over or dominated the affairs of the assembly. What worries me about what has been said is that there is at least some scope provided by this amendment for political manipulation.
I have no doubt that nothing was further from the mind of the Minister who introduced the amendment.
I can quite see that there are practical considerations.
I want to know how we can avoid the possibility that at some future date someone might decide that his or her party were more likely to win the election if it were held in combination with, say, a European election which would not actually fiddle the books.
Lord Roberts of Conwy: The Committee will be very grateful to the Minister for explaining the purpose of this amendment because we are always somewhat suspicious of orders, however well intentioned, that affect the workings of the Representation of the People Act and elections, albeit at the lowest level of local government. Community councils are very important. I am president of my local council's association in the Conwy Valley and I am well aware of the pride they take in their work and their role in local government.
I hope that the Solicitor-General can follow the detail of the remarks made by my noble friend Lord Balfour. As regards the point raised by my noble friend Lord Crickhowell, there is tremendous scope here for political manipulation. Even as the Minister spoke about the combination of the assembly election with the unitary authority election on 6th May, which was part of his example, he raised the issue in one's mind of why that particular combination and why that of the community councils and Euro-elections on, possibly, 10th June.
We have a plethora of elections, but the combination gives scope for some political manipulation. One can well ask, for example, whether the assembly election is not more in tune with the European election, bearing in mind that although the Welsh European constituency is changing, nevertheless, we are making use of the old Euro constituencies for the assembly election. Therefore, I believe, that some further explanation is required.
Lord Falconer of Thoroton: Perhaps I may first deal with the perfectly legitimate point raised by the noble Earl, Lord Balfour. Clause 23(3), to which he drew our attention, allows a power to make orders under Clause 3(4), which is the power to postpone community council elections. It allows them to be transferred to the assembly. If it is not transferred under the power in Clause 3(4), then the power remains to be exercised by the Secretary of State and
872
only after consultation with the assembly. That is how the two interact. I hope that that explains the noble Earl's point.
The noble Lord, Lord Crickhowell, raised the point of political manipulation. That came into his head as he heard the explanation that was being given. Perhaps I may explain how the system works. Clause 3(4) gives the Secretary of State the power to postpone community council elections, and only that power. The amendment I have just moved gives the power that, if one postpones, the Secretary of State has the power to make sensible administrative arrangements.
The fear that the noble Lord, Lord Crickhowell, has raised must relate not to the amendment that I have moved, but to the power in Clause 3(4). It must be beyond argument that if one is going to be allowed to postpone, one must have the power to make sensible administrative arrangements that go along with it, such as the example that I gave of having a sensible timetable for nominations with which the administration running the elections can cope.
The example given exemplifies the need for Clause 3(4) which provides quite a limited power and relates only to community councils. If one does not have that kind of power one can end up with a large number of elections taking place at about the same time without the manpower to deal with them. It is as simple as that. The power that has been given to deal with that situation is about as limited a power as one could possibly give. It is sensible. There is not that much scope for manipulation. I believe that the matter has been thought through and it is the right conclusion.
Lord Crickhowell: I would like to consider very carefully what the Minister has said. The point only came to mind as I listened to his explanation of the clause. It is a risk that we need to avoid. I would like to consider what the Minister said and whether anything further needs to be done.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Voting at ordinary elections]:
[Amendment No. 10 not moved.]
6.30 p.m.
Lord Mackay of Ardbrecknishmoved Amendment No. 11:
Page 2, line 42, leave out from ("have") to end of line 9 on page 3 and insert ("one vote (referred to in this Act as a constituency vote).
(2) The constituency vote is to be given for a candidate to be the Assembly member for the Assembly constituency.
(3) Each registered political party which has submitted a list of candidates to be Assembly members for the Assembly electoral region in which the Assembly constituency is included shall also be assigned a number of votes to be known as "additional member votes".
(3A) The number of additional member votes assigned to each party shall be the same as the number of constituency votes cast for the candidate of the party in that constituency.").
The noble Lord said: Amendment No. 11 and the amendments with which it is grouped relate to the two-vote system which the Government introduce in this

873
Bill and the Scottish Bill. I believe that the amendments from Amendment No. 17 onwards should be grouped with Amendment No. 11 because the former deal with an individual candidate in the second ballot. Clearly, if my proposition in Amendment No. 11 succeeds, one would not have individual candidates in the second ballot. Therefore, unless something comes to my notice during the Minister's reply, I shall continue to believe that Amendment No. 17 and those grouped with it should be grouped with Amendment No. 11 also.
We are to have a two-vote system. In the first instance, one will enter the polling station and vote in the normal way for party candidates, perhaps even for an independent candidate, and the result will be decided by means of the traditional first-past-the-post method. There will be a second ballot paper on which one will be asked to vote for a party. I believe that that will also contain a box for independent candidates, but I am a little unclear about that because this system has so many variations. Once the party votes on the second ballot are added up, the proportionality system, which the Committee will consider later, will be used to check the total proportionality, including the first-past-the-post members. Up to four top-ups will be allowed to try to bring the totality within the European constituency up to proportionality.
Your Lordships may regard that as fairly straightforward and believe that there is no way that it can be fiddled. I am sorry to use the word "fiddled" again in case it brings the noble Lord, Lord Thomas of Gresford, to his feet. If he waits a little while, he may agree that I have some justification in this instance for suggesting that the system is very much open to considerable fiddling and fixing. In my view, it is open to huge abuse.
I believe that the easiest way to illustrate that is to take the Euro-constituency of Wales North as at 1992, for the very straightforward reason that my party managed to win two seats then. For the purposes of the argument, my party needs to have won a seat or two under the first-past-the-post system. In that Euro-constituency in 1992, the Labour Party would have gained four seats, the Conservatives two, the Liberal Democrats none—I assure the noble Lords on the Liberal Democrat Benches that I did not pick this example deliberately—and Plaid Cymru two. Clearly, I wish to influence the noble Lord, Lord Elis-Thomas, in the example that I have taken.
One must assume that the votes in the first and second ballots are the same. That may not be a justifiable assumption, but the matter must be approached in that way because that is all the information that is available. If one then calculates the four additional members, the Labour Party would get one additional member, the Conservatives two, the Liberal Democrats one and Plaid Cymru none. That seat would have a total of five Labour, four Conservative, one Liberal Democrat and two Plaid Cymru members.
Because I believe that this system is open to fiddling I have decided to play a tune. My tune is that in Wales the Conservative Party decides to divide itself. Some of my friends set up the Welsh conservative party; others
874
set up the Welsh unionist party. We succeed in being registered as separate political parties. That is an assumption; we have not yet seen the Bill about the registering of political parties and it may not be possible. However, I ask the Committee to assume for the moment that that is possible. The Conservative Party will not appear on the second ballot paper and the unionist party will not put up any candidates on the first ballot paper. When the AMS system is calculated, the Labour Party will achieve no additional members, while the unionists will achieve three and the Liberal Democrats will still manage one. The total will be: four Labour (as opposed to five), five Conservatives and unionists (as opposed to four), one Liberal Democrat and two Plaid Cymru members.
Perish the thought that the Labour Party decides to register two separate parties, one the Welsh labour party and the other the Welsh co-operative party, to take a name from history. When that calculation is made, three co-operative members, no conservatives, one Liberal Democrat and no Plaid Cymru members would be on the AMS list. The result of that particular piece of fiddling would be the election of seven Labour and co-operative members, with two Conservatives, one Liberal Democrat and two Plaid Cymru members. Noble Lords will see what I meant when I said in a previous debate that the proportional representational systems were open to endless fiddling.
In 1997 the position from a democratic point of view—dare I say it—would be even more dramatic. The Conservatives could not play this game because we did not win any first-past-the-post seats but, by jove, the Labour Party could play it on the assumption that it registered separate parties. The Labour Party would stand in the first-past-the-post ballot and the co-operative party would not. In the second vote, the Labour Party would not stand but the co-operative party would. In 1997 the position was that the Labour Party gained six seats, the Conservatives and Liberal Democrats none and Plaid Cymru two. On the basis that the fiddle to which I referred did not occur and the Labour Party stood in both ballots, the Labour Party would have gained no additional members, the Conservatives three, the Liberal Democrats one and Plaid Cymru none. The end result would be six Labour, three Conservatives, one Liberal Democrat and two Plaid Cymru members. But if the Labour Party played the tune that I mentioned and set up a separate co-operative party, the additional member system would deliver three additional members to the co-operative party, one to the Conservative Party and—this is where the Liberal Democrats should be worried—none to the Liberal Democrats or to Plaid Cymru. Labour would gain nine seats, the Conservatives one, the Liberal Democrats none and Plaid Cymru two.
I believe that my arithmetic is pretty good. The premise on which I base it is: first, that the first and second votes fall the way that I have suggested; and, secondly, that the Conservative Party manages to split itself and register as the Conservative Party and as the unionist party and that the Labour Party registers as the Labour Party and as the co-operative party. I believe

875
that in that event even the noble Lord, Lord Thomas of Gresford, would agree with me that fiddling could occur in a very big way.
I would not like the Committee to believe that my devious mind had thought this up on its own. It has not, although it may have done eventually. My attention was drawn to some remarks made by Mr. Ian Davidson, the Labour Member for Glasgow Pollok, in which he said that it would be an excellent idea if a separate co-operative party registered and stood in a separate ballot and the Labour Party did not stand in the second ballot but only in the first. That idea has been floated. It may be that perhaps it is just my fellow countrymen who are particularly devious, but I suspect that the contagion may spread to Wales when people see that they can take advantage of the system.
Lord Cledwyn of Penrhos: I point out to the noble Lord that the Presbyterians would not allow it!
Lord Mackay of Ardbrecknish: The Presbyterians would not allow it but in neither Wales nor Scotland not everyone is as firmly Presbyterian as that. The game could still be played.
Mr. Win Griffiths, Under-Secretary of State at the Welsh Office, was gratifyingly clear in another place. I quote his words with approval:
"I concede that there may be scope for collusion between and within parties to exploit the two-ballot structure of the additional member system in the manner…described. Such cynical manipulation of the system would be an affront to the electorate and would undermine the democratic credibility of the elected body".—[Official Report, Commons, 2/3/98; col. 804.]
I was gratified to read that.
He went on and made it quite clear on behalf of the Labour Party. He said on 25th March in the other place,
"On behalf of the Labour party I am prepared to say publicly and openly that my party will not try to deceive the electorate by entering into any such collusion. It would he easy for all the other parties in the House to make a similar commitment, which would kill the split ticket idea altogether".—(Official Report, Commons, 25/3/98; col. 629.]
The problem with these assurances, which I absolutely accept are genuinely meant, is this. Being a Presbyterian, I understand the existence of sin and temptation; and at some stage in the future the temptation is there. It is also actually there on another method of fiddling and that is that a minority party—a party which perhaps cannot achieve any first-past-the-past gains—stands only on the second ballot paper. The voters of the party with the overwhelming vote—let us say the Labour Party, in the case of the Euro-constituency of North West Wales—advises its members as follows: "You will be wasting your vote if you vote for us in the second ballot because frankly we have got so many on the first-past-the-post ballot that we are not going to get any top-ups. We suggest you go and vote for that minority party and they will achieve something on the AM system, and of course they will be our partners if we need partners when it comes to forming the assembly government."
This is actually done, I understand, in the German system. In some cases the major party—currently it is the Christian Democrats although at some stage,
876
I imagine, it was the Social Democrats who did the telling—having won so many seats under the first-past-the-post system and knowing it will not get any top-ups, advises its electors to vote for the Free Democrats in the second ballot. This means that the Free Democrats, who did not win any seats under the first-past-the-post system, can actually achieve some seats in the Bundestag and therefore help the Christian Democrats to defeat the Social Democrats, who may well actually be the biggest party after the elections. So these are the two cases—
Lord Crickhowell: I thank my noble friend for giving way. Did he hear the noble Lord, Lord Thomas of Gresford, boasting earlier about pre-election deals between his party and the Labour Party?
Lord Mackay of Ardbrecknish: I did, but I feel that I have already annoyed the noble Lord, Lord Thomas of Gresford, sufficiently for one day and should therefore resist any temptation to say that the Liberal Democrats would consider any such deals. Indeed, although I am not allowed to quote, one of their Welsh Members in, I think, the Committee stage in the other place, indicated that the Liberal Democratic Party would not wish to abuse the system either. Mr. Livsey indicated that the Liberal Democrats would not wish to abuse the system.
However, the problem is still there. The two-vote system is open to serious abuse. I cannot quote a Welsh example, but I know it is seriously being talked about in Scotland and I suspect that if it starts in Scotland the contagion may spread to Wales. I would hate to see that happen. I would be tempted to stop it in the Scottish Bill as well. There are a variety of ways in which one could stop it. Indeed, my honourable and right honourable friends in the other place mentioned some. One is to link the first ballot to the second ballot so that if you do not stand in the first ballot you cannot stand in the second. That is a possible way out of the dilemma. But the simplest solution is to have one vote only so you only vote once, which is first-past-the-post. If your man or woman wins, their votes are then added up and become the basis of the additional member system. Any sleight of hand or fiddle is not possible because people have only one vote, exercised on the first-past-the-post system.
This is a genuinely serious problem. I accept that most political parties would not use these tactics but the very fact that they have been thought about in one particular constituency means that, particularly in Scotland where Labour would win all the first-past-the-post seats but would not, if my recollection is correct, win any later—as in North-West Wales where the Labour Party would win six first-past-the-post votes but would not get any of the additional four—there is (dare I say?) too great a temptation put before politicians. I beg to move.
The Deputy Chairman of Committees (Lord Strabolgi): I have to inform your Lordships that if this amendment is agreed to I cannot call Amendment No. 12.
Lord Hylton: The noble Lord, Lord Mackay of Ardbrecknish, described his own mind as being devious.

877
I think I would prefer to call it fertile and ingenious. However, perhaps the "plain man's answer" to him is that these two votes should be cast on the same day and at the same time. Secondly, I suggest that the proposed registrar of political parties should have the strictest instructions not to register pseudo-parties.
6.45 p.m.
Lord Williams of Mostyn: It seems to me that what the noble Lord overlooks is that voters are not stupid, and since the whole basic premise of our democratic arrangements is that one trusts voters to have at least a grain of common sense—though not as much as anyone in your Lordships' House, of course—one begins on rather an unhappy basis. The noble Lord earlier was quite lyrical in his support of the first-past-the-post system—how it was stable and accountable—and as I was listening to him with care the year of 1951 floated into my mind. If I remember rightly, Labour then had the majority of votes in the United Kingdom but ended up with a minority of seats.
There is no electoral system presently known or capable of being devised by the human mind which is going to be perfect. Of course there is the potential for collusion. Some call it collusion and some tactical voting. I believe the Conservative Party has had knowledge of that in recent times following the re-held election where an original deficit of two turned into a Labour majority of well over 20,000. People do vote tactically. I beg your Lordships' pardon; I meant Liberal Democrat. Before the noble Lord says that there is a significant difference, I must make that clear.
This is a solution worked out by the fertile mind of the noble Lord, Lord Mackay. I shall not speculate on the nature of the fertiliser which produced the fertility but his proposals, I am bound to say, would bring about something which is really a further distortion. What he suggests I understand, is that voters are allowed one vote only for the constituency candidate. Then the votes for that candidate in each electoral region are aggregated to constitute a party list vote for that region. So a vote for a party candidate in a constituency is automatically going to be a vote for the same party list in the electoral region. There would be no option to vote for the party list. The composition of the list would have to be taken into consideration when making the constituency selection.
I believe that to be wrong. If we go back to the point, which was well raised and well dealt with by my noble and learned friend the Solicitor-General, and also raised by the noble Baroness, Lady Young, that one wants a constituency connection, why should that constituency connection be distorted by the fact that you would only have the one vote, and if you vote for your constituency member your vote is aggregated in the way that I mentioned? It means that the four additional members are reduced to the status of being indirectly elected. Why, in the context of Wales, if voters wish to vote for the candidate of one party in the constituency and the list of another party in the region, should they not have that choice?
878
There are people, I am told—though I whisper it low—who might wish to vote Labour on the party list but who might want to vote either for a Liberal Democrat candidate in the single member constituency because they favoured that individual, or for a Plaid Cymru candidate because they favoured that individual—or because they wanted to show their belief in inclusiveness and diversity. Why should they not have that opportunity?
There is something much more important, I think. This proposal would have a serious, if not devastating, impact upon the ability of smaller parties to mount a realistic campaign. Not all small parties are by definition extremists. They have a democratic right to put themselves forward to the voters and the voters have the reciprocal right, I suggest, to the opportunity to consider whether to vote for them. For smaller parties, the main hope, life being such as we know it to be, of winning seats in the assembly may well be the party list vote in the electoral region.
Under the presently proposed scheme, in order to maximise its potential for party list seats a party would have to run candidates in every constituency in the electoral region. That is a daunting prospect for a small party, which would have to find suitable candidates and resources to contest between seven and nine constituencies per region. I offer this on a plate: it would have meant that the modern Labour Party could never have come into existence because in its infancy it would not have had the resources. The same would have been true of the nascent Liberal Party in the latter third of the 19th century and the same would undoubtedly have been true of Plaid Cymru because it would not have had the resource or candidates available to stand in every constituency.
Why should they be denied the opportunity to concentrate their resources to the best advantage? There might be constituencies in Wales where a single party—for instance, the Greens—had particular support and on which it wanted to concentrate. The noble Viscount, Lord St. Davids, made a point a long time ago, as it presently seems and actually is, when we were first discussing the principle of referenda and Welsh assemblies. He stated that we ought to have a tender consideration for the interests of those who are genuinely independent. The amendment tabled by the noble Lord, Lord Mackay of Ardbrecknish, would mean that no independent candidate would be able to run in the electoral region, and we believe that to be wrong.
There is the possibility for collusion. My honourable friend Mr. Win Griffiths gave the undertaking on behalf of the Labour Party that we would not in any circumstance attempt to deceive the electorate by entering into any collusion. The Liberal Democrats have said the same and I take it as axiomatic that had the noble Lord, Lord Thomas of Gresford, contributed to the debate he would have repeated his party's commitment. I do not believe that the voters are as stupid as people sometimes pretend. It would require a degree of sophisticated cynicism, and I accept that as a possible condition of the political scene, but it would require a good deal of organisation. Most people are

879
unwilling to be organised on the basis of cynicism; they prefer to be organised on the basis of either idealism or ideology.
What will happen if there is collusion? The other political parties would rightly expose it. Undoubtedly, the media would be on to it like a dog on to a rat. In the end, that would do no good at all to the party which was trying to manipulate. I did not have my pencil to hand and therefore was unable to follow the noble Lord's subtle mathematical calculations concerning what might or might not have happened in certain elections in the northern part of Wales. He may well be right. However, if one acts on the basis that one is trusting the Welsh people to run their own affairs in an assembly for Wales, one might as well trust them to recognise what they would plainly regard as deceit being practised upon them.
The serious consequences which would inure from what the noble Lord said are much too gross a distortion of the right to stand and the right to vote. Although there is a point to what he said, I believe that his solutions are infinitely worse than the problems he predicates.
Lord Simon of Glaisdale: The noble Lord, Lord Williams, said that no electoral system is perfect. He carries approbation with that. Some are worse than others, and in my respectful opinion the party list is the worst of all. The party managers already have far too much power. We read of manoeuvres to stop X or Y becoming mayor of London. No one who has had anything to do with politics can fail to be aware of the omnipresent and far too powerful influence of party managers. The party list system gives them extra power. They can compile their own list of favourites and keep off those whom they do not favour.
That shows that we are rushing into the situation without any proper consideration of what is the best system of proportional representation, if we are to have one at all. The fault is not purely that of the Government, although our present situation is of their manufacture; it is also partly the fault of their predecessors. In Session after Session last Parliament, in debates on the Queen's Speech there were pleas for a Royal Commission on the constitution. It could then consider a number of interrelated questions which we are now trying to deal with separately; for instance, a referendum, an electoral system and second Chamber reform. There are many issues. The plea was made repeatedly, but one Government Minister after another came to the Dispatch Box and stated, in effect, that everything in the constitutional garden was lovely and that there was no need for an inquiry. Therefore, if the Opposition are now uncomfortable their leaders are not entirely blameless.
That does not by any means excuse the Government in rushing us into a system which is subject to grave disadvantages. A Royal Commission is one thing, but a two-party committee presided over by the noble Lord, Lord Jenkins of Hillhead, is quite another. I have been a colleague of the noble Lord in one place or another for many years and I have high respect for him. I should
880
like to flatter myself with personal friendship. However, the proposal is not a satisfactory way of dealing with the matter.
Incidentally, the noble Lord, Lord Mackay, was right when he spoke on the referendum Bill that if we had no Royal Commission behind us the first thing to consider was where a referendum was appropriate and what type of referendum there should be; should it be pre-legislative, post-legislative, ask a number of questions or a single question? What was not suggested was the fudge in which two questions should be put together, outrageously so in the elections for a London mayor, as the Liberal Democrats pointed out. If a mayor of London necessarily involved having a corporation of London and vice versa only one question was justified. But no one claimed that and so we had the familiar fudge. We are now faced with the question of what type of proportional representation we shall have. A system which surrenders yet more power to the party managers is unacceptable.
I make one general comment. In the debate on an earlier amendment, I ventured to point out that the Bill has no political legitimacy. Perhaps I should modify that. Its sole political legitimacy is that in general, all parties wish it well. But that really demands a very different attitude from the Government; namely, one in which they are prepared to take your Lordships as a council of state and to show some reasonable flexibility. We have had no flexibility at all today.
I remember many years ago being concerned with the late Lord Runcorn on a licensing Bill in another place. He genuinely treated the committee as a co-operative body. He retained sufficient authority and was trusted to prevent the Bill becoming out of shape. But otherwise, he was prepared to consider amendments on their merits. Today, all that we have had has been negative. As the Committee will know, every one of the Minister's briefs end either with "accept", "reject" or "consider". The noble Lord, Lord Williams, is in charge of this Bill. It is entirely up to him what should be the response. In the circumstances, it should be at the very least "consider". It should certainly not be what we have had so far—"reject, reject, reject".
As regards this amendment, it seems to me from the Cross-Benches that the noble Lord, Lord Mackay, made a formidable case and I really believe that the Minister should be prepared to consider it on its merits.
7 p.m.
Viscount St. Davids: The noble Lord, Lord Williams of Mostyn, very kindly referred to the question which I raised when we debated the White Paper for Wales as regards independents. Is there to be any mechanism whereby independents will be able to appear on the additional member list?
Lord Mackay of Ardbrecknish: I am not sure whether my noble friend's question was directed at the Minister or myself. As I mentioned right at the beginning of the debate, Amendment No. 17 and subsequent amendments should have been grouped

881
together because if my amendment were to succeed, there would not be a second list and therefore provision for independents on the second list would fall.
As presently constituted, there could be independents on the second list. However, I should be totally and utterly amazed if any independent ever gains enough votes in those large constituencies in order to achieve the breakthrough in an additional member system to reach the fourth position in Wales or the seventh position in Scotland.
I am grateful for the intervention of the noble and learned Lord, Lord Simon of Glaisdale, whose approval of devolution is well known—he has voiced it on a number of occasions. I hoped that the noble Lord, Lord Williams of Mostyn, might show a slight glimmer that he understood the problem that I was posing. Certainly his honourable friend in the other place understood that. The problem is real. My solution may not be the best one and it may be open to more debits than credits, but the problem is real; it exists.
I did not suggest for one moment that voters are stupid. Indeed, the whole case I made was that the voters are intelligent and will see how to manipulate the system. If we take the North Wales Euro-constituency at the last election, every Labour voter would see the situation perfectly clearly. The Labour Party won six out of the eight seats on first-past-the-post. It was a waste of their time voting for the Labour Party in the second ballot. Therefore, they would see very clearly that the sensible and intelligent option for them was to vote for the Welsh Co-operative Party in order to make sure that their party, in combination with the Welsh Co-operative Party, would have the overwhelming majority of seats in the Welsh assembly. Far from thinking that the electorate could be duped by this, I believe that many voters would see that that was the only way to prevent their vote being totally and utterly wasted.
I deal now with squeezing out small parties. I know that I trotted out figures. I was conscious of the fact that it is not always easy to remember all the figures and the relationship between them. However, in north-west Wales at the last election, if a method were found to stop fiddling along the lines I suggested, then the Liberal Democrat Party—in that case, it could reasonably be described as a small party—and the Conservatives Party would gain one seat and three seats respectively. However, if the fiddle I fear were to happen did happen, the smaller of the two parties would be squeezed out entirely. The Liberal Democrats would not win any seats and the Conservatives would win only one because the co-operative party would win three of them. Therefore, far from my method squeezing out small parties, if that manipulation were carried out—and I concede that it is a big "if"—the small parties would be squeezed out. The whole point is that the big player would not only win seats on the first-past-the-post system, but would also, in his alter ego, gain seats through the additional member system.
The Minister did not convince me at all that my problem is not a real one. Indeed, it does happen in Germany. People do understand that entirely. If you are a Christian Democrat and you want your party to run
882
the country—after all, that is what the first-past-the-post system allows your party to do when it wins—you achieve that in certain circumstances where your party is a heavy beneficiary of first-past-the-post by using your second vote for the minority party which will form a coalition with you. In that way, you can make sure that your party, with a minor partner, wins even though the other party which is sitting on the opposition benches has gained more seats than anybody else. That is the reality of proportional representation.
I am sorry that the noble Lord has not given an indication that he appreciates the point I was making. I understand that my amendment would remove the cross-voting which people see as a merit in the additional member system. I do not see that, but I understand the argument in favour of cross-voting being available in the additional member system.
However, the Government should see whether they can arrive at a better answer than that which I have managed to achieve today. They must try to defeat that sort of fiddle happening in the future. I shall read with great care what the Minister said, although, in all honesty, it will not take me very long. I shall also turn my mind to other methods of achieving the same result; namely, to stop serious fiddling of which we have already been given notice by a Labour Member of the other place. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 14 not moved.]
Clause 4 agreed to.
Clause 5 [Additional member system: party lists and individual candidates]:
Lord Roberts of Conwymoved Amendment No. 15:
Page 3, line 25, at end insert ("who shall publish the list at the earliest available opportunity and ensure that it is clearly displayed at each polling station in the Assembly electoral region.").
The noble Lord said: This is a fairly simple amendment to ensure that the returning officer publishes the list. Along with my noble friend Lady Young, I believe that the entire PR system as drafted by the Government will come as a considerable surprise, if not a shock, to the Welsh electorate. They are not accustomed to voting simply for a political party. They like to have the ability to choose between candidates. They like to know their representative personally. They are now to be confronted with a closed list system in the five electoral regions for the election of 20 assembly members. They will have to vote for a party and a list of candidates standing in its name. They will not know the party's order of preference for its candidate unless the party chooses to reveal it. Personally, I should have preferred an open list where the votes are cast for individual party representatives rather than the parties themselves. However, that is not the Government's proposal. As I understand it, they have decided against what I call the Belgian system or, indeed, any adaptation of it.
It seems to me that the least we can do on the face of the Bill is to insist that the regional returning officer "shall publish" the lists of party candidates when they are submitted to him. It is possible that the parties will

883
do so in any case, but they are under no statutory obligation. We certainly believe that Welsh electors are entitled to know, when they vote for a particular party, who may be elected to the assembly as a result of their vote.
There is, of course, a further reason for publication of the lists; namely, their continuing importance in the period between elections in the event of a vacancy occurring among the additional members in a particular region. The successor will be the next on the list from which the vacating member has withdrawn. Obviously, it is important that he should know just where he stands on the list in between elections. I commend the amendment to the Committee. I beg to move.
Lord Williams of Mostyn: In my response, I shall speak to Amendments Nos. 15 and 16. I believe that the noble Lord's remarks have a good deal of validity. We are indeed considering a number of options, including the suggestions which are described and encompassed in Amendment No. 15. In the London referendum, the ballot paper question was shown on a notice in every polling station and on every polling station compartment. We are looking at the possibility of doing something similar as regards displaying party lists.
However, we have to be careful that we do not prejudice the chances of independent candidates who may also want to stand for the electoral regions. The answer to the question posed earlier by the noble Viscount, Lord St. Davids, which I was not in a position to deal with at the time, is yes. There will be the opportunity for independents to stand for election. We must ensure that we look after the independent candidates rather than just flooding them with information about the party lists.
Some polling stations are very small; indeed, they are only caravans. So we shall also need to consider that. Our officials are discussing the practicalities of the suggestions made by the noble Lord with representatives of the elections administrators in Wales. I hope that the noble Lord will find that a helpful response. My only lasting and continuing regret is the fact that the noble and learned Lord, Lord Simon of Glaisdale is, yet again, not present in the Chamber when I am being accommodating to suggested amendments.
As regards publishing the lists as soon as possible after their having been submitted, I am bound to say that, in principle, that seems a thoroughly sensible idea. After all, at parliamentary elections, the acting returning officer is required to publish a statement of the persons nominated once the period of making objections to nominations has expired. We shall need to make similar provision for the assembly elections, and we are considering the practicalities of putting into effect the general approach which has been indicated most helpfully by the noble Lord, Lord Roberts.
There are details involved, but not unimportant ones. We are in the process of drawing up an assembly elections procedure order which will lay down the rules and regulations for the conduct of the assembly elections. That is the appropriate vehicle, but it can only approach putting principle into effect if we consider
884
with care the ideas which have been put forward. I assure Members of Committee and the noble Lord that we shall do so. The elections order is intended to be subject to the affirmative resolution procedure in this Chamber and in the other place. We anticipate it being presented to Parliament before the end of this year. Therefore, I give my undertaking—I hope, co-operatively—that we shall look at the suggestions made, which I certainly regard as constructive. That being so, I shall ask the noble Lord to withdraw his amendment in due course.
Amendment No. 16 is essentially technical. It specifies that the list submitted to a regional returning officer by a political party has legal force for the purposes of the coming election to which it relates and remains in force for the term of the assembly elected at that election. So the lists submitted to the regional returning officer will be used for allocating any additional member seats to which the parties may be entitled. The appropriate party list will be used to determine the filling of vacancies in electoral region seats between ordinary elections. I hope that my amendment is regarded as a helpful one. I believe that it is entirely consistent with the observations put forward by the noble Lord when he proposed Amendment No. 15. Therefore, I invite the noble Lord to withdraw his amendment.
7.15 p.m.
Lord Roberts of Conwy: I am most grateful to the Minister for that reply. We look forward to the further development of the idea of publishing the lists. I shall be only too happy to withdraw my amendment.
However, with regard to the Government's amendment, to which the noble Lord has just spoken and the validity of the list in between elections, my impression is that the party has to be notified in the first instance, rather than the returning officer, if the candidate chooses to withdraw. It seems to me that all the emphasis is on the party in that context and that not enough regard is being paid to the interests of the individuals on the list. Indeed, a great deal can happen to individuals on the list in the course of the best part of four years between elections. It seems to me that there should be some provision whereby a candidate can withdraw without necessarily going through the party. Nevertheless, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostynmoved Amendment No. 16:
Page 3, line 25, at end insert—
("() The list has effect in relation to—

(a) the ordinary election, and

(b) any vacancies in seats of Assembly members returned for Assembly electoral regions which occur after that election and before the next ordinary election.").

On Question, amendment agreed to.
Lord Mackay of Ardbrecknishmoved Amendment No. 17:
Page 3, leave out lines 32 and 33.

885
The noble Lord said: I indicated earlier that the principal reason for this group of amendments was that they teamed up with the previous group, in respect of which I discussed the problem of manipulation of the double-ballot system. I said then that I probably would not move these amendments unless something occurred to me. I have to say that something has indeed occurred to me, which I should like to share with Members of the Committee. I ask the Minister not merely to comment upon it but, even more importantly, to think upon it.
Towards the tail end of my observations on the last amendment, I said that I doubted whether an independent candidate would ever be able to achieve enough votes on the four-member additional system by the d'Hondt method to succeed in being elected. I do indeed think so in the case of a genuine independent. However, having got myself into a devious frame of mind as a result of the last amendment, it occurs to me that a person posing as an independent candidate, who in fact is a member of a considerable party worthy of high repute, could decide to stand as an independent in the additional member system.
The advantage would occur only in seats like the one that I instanced for north-west Wales when the Labour Party—indeed, it could be any of our parties—won such a significant share of the first-past-the-post seats that it really was not achieving any additional member seats. For example, Mr. Ron Davies, who has achieved devolution for Wales, might decide that he could easily stand in north-west Wales as an independent candidate. In that second vote, the Labour votes would no longer be wasted; they could all vote for Ron of the assembly. I presume that is how these things happen in Wales, or at least it does in the films about Wales that I have watched. As I said, they could all vote for Ron of the assembly and he would get all those votes and would take one of the additional member seats. For the life of me I cannot see any way that could be avoided.
I accept that that example is slightly flippant, but it is not completely flippant. Someone could be elected because of his or her well-known prominence as a member of a political party and through taking the independent route on the additional member system, safe in the knowledge that he was so well known by the supporters of the Labour Party, the Conservative Party, the Liberal Democrats, or Plaid Cymru, that he would achieve more than enough votes in the second ballot from his own party members to enable him to gain a seat via the d'Hondt system.
I accept that the fertile minds in the Welsh Office have probably not come up with this particular wrinkle. The Minister may perhaps wish to reflect on it. I would be grateful to hear his thoughts on what I think is a less likely way round the system than the one I mentioned a few minutes ago, but nevertheless I believe that it exists. I beg to move.
Lord Williams of Mostyn: These amendments would mean that independents would not be able to stand for election in electoral regions. Speaking for a Labour Government, I abominate the suggestion that
886
there should be any undue party control over who should stand in elections. I share the horror that was expressed by the noble and learned Lord, Lord Simon of Glaisdale, that that should be in anyone's contemplation. It is true that independents do not always win elections, but sometimes they do. At least four, five or six of us will remember what happened at Merthyr Tydfil when the late S.O. Davies refused to stand down. A party representative was put forward and S.O. Davies, who in effect stood as an independent—I do not think one could ever contemplate anyone more independent than the late S.O. Davies—roundly trounced the party candidate. As I said, on occasions, independents can win. If we want a pluralist democracy, which we do—we have demonstrated that in our entire approach to the assembly—there ought to be the opportunity for those who wish to represent no party to stand as independents.
Lord Mackay of Ardbrecknish: I am grateful to the Minister for giving way. .I understand the point he is making. Much to the detriment of my party, an independent won a seat at the previous general election. He is not present today but I believe that the noble Lord, Lord Taverne, won a seat as an independent. I do not dispute that proposition. I have no problem with that. I do not think that my amendments were designed to deal with the first ballot which, of course, would have allowed all the people we have just discussed to stand for first-past-the-post seats. The problem I highlighted concerned the second, top-up ballot. I was not sure whether the noble Lord would discuss that. In case he did not, I thought I might try to prompt him.
Lord Williams of Mostyn: I was just about to turn to that; in fact my tongue was already pronouncing the first syllable of it. One of the problems of the noble Lord's approach is that—as I ventured to suggest earlier—his solutions are worse than the problems which he claims to identify. Does one want representatives of small parties to have the opportunity to stand for election? The answer from the Government's point of view—and, I believe, from that of the Liberal Democrats—is yes. Do we want independents to have the opportunity to stand for election? The answer is yes. If amendments are proposed which negate the possibility of that occurring, they are not a sign of an inclusive, pluralist society or assembly.
The noble Lord said that in certain circumstances, given a certain fertility of mind—to use his term—one can produce scenarios which may not necessarily please him and may not please the rest of the Committee. It is, I suppose, the bogeyman approach to electoral reform. I take the point that in some circumstances—as no system is perfect—results will occur which would not be welcome either to the noble Lord or to me, but that is democracy. We cannot always have what we regard as a perfect solution if we trust the people. We believe that the system we have will be representative and will be constituency-member related for the reasons that the noble and learned Lord the Solicitor-General outlined earlier. It will allow those parties which have no success in present circumstances under the first-past-the post system the chance of obtaining reasonable representation.

887
I have now found my pencil and will do my own calculations. If the Conservative Party in Wales obtains 20 per cent. of the votes in the assembly elections, it will probably have about 12 members; in other words, a perfect fifth. That is a benefit. I do not particularly want Conservative members in the assembly as a matter of practice, but as a matter of principle alternative views should be adequately and reasonably represented, to use the phrase that the noble Lord, Lord Thomas of Gresford, mentioned earlier.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for those comments. This is Committee stage and therefore I believe we can pursue this matter a little further. My concern is not that which the noble Lord appears to express. My concern is that a political party which is in a dominant position could easily persuade its voters—I could be easily persuaded in this circumstance—to use the second vote in the alter ego way I suggested in my earlier amendment, or to support an independent who was quite clearly a leading member of that party. It is that circumstance that I am concerned about. That process would block out the smaller parties, as I explained with regard to my previous example. I have not given a worked example on the problem that we are highlighting at the moment. I am sorry to keep on about the Labour Party but it holds all the seats we are discussing. However, this matter could equally arise if my party held all the seats in an area. If the Labour Party was to gain no seats under the additional member system—that is what would happen in north west Wales—one way round that would be the way that I suggested earlier, and another way—
Lord Thomas of Gresford: Will the noble Lord give way?
Lord Mackay of Ardbrecknish: I am replying to the point made by the Minister. We had better not have interventions on top of interventions. My worry is that an independent who was really a Labour Party man could stand, mop up these Labour votes which would otherwise be wasted, and find a way round the legitimate additional member system and—dare I say it?—probably knock out the Liberal Democrat's fourth representative in that constituency.
Lord Williams of Mostyn: I rise to speak to enable the noble Lord, Lord Thomas of Gresford, to intervene.
Lord Thomas of Gresford: I am constantly irritated in the debate between "Lestyn" Mackay and "Taffy" Falconer by the reference to north west Wales. This is the north Wales constituency. That is my point.
Lord Williams of Mostyn: The Labour Party has given a categoric assurance that we shall not do such deals, as have the Liberal Democrats. I imagine that Plaid Cymru would have the same view.
Lord Elis-Thomas: In view of the persistence of the Minister I am pleased to give that assurance.
Lord Williams of Mostyn: That leaves only the Conservative Party, as far as I am aware. If that party gives that assurance, we can all rest happy not in our beds but at our supper.
Lord Mackay of Ardbrecknish: I am certainly happy to give that assurance. However, if I may say so, that would be the same as asking us to give assurances about many other matters which concern electoral law; namely, that we would not do this, that or the other which is against the law. While that may be a good debating point for this Chamber, I do not think it is valid from the point of view of having a proper legislative framework. However, having made my purist point on that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
Baroness Farrington of Ribbleton: I beg to move that the House do now resume and that the Committee stage be adjourned until not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Public Interest Disclosure Bill
7.28 p.m.
Lord Borrie: My Lords, I beg to move that this Bill be now read a second time.
It is a pleasure and an honour to introduce this Bill into your Lordships' House. It passed through another place with strong support from both the Government and the Opposition. I pay tribute to both Mr. Richard Shepherd MP and to the Minister of State at the DTI, Mr. Ian McCartney, for the careful consideration that they and their advisers gave to this matter. The results of that careful consideration can be seen not only in the detail of the Bill but also in the support that the Bill has received from the CBI, the Institute of Directors, the TUC, consumer groups, various professions such as the medical, legal and accountancy professions, and numerous other bodies.
I myself have particular reasons to be proud of this measure as it is, to a large extent, based on the work of a charity, Public Concern at Work, which I helped to found some six years ago. It was not an easy initiative to launch, but its importance was recognised at the outset by, among others, the noble and learned Lord, Lord Oliver of Aylmerton, the noble Lord, Lord Gladwin of Clee, the noble Baroness, Lady Dean of Thornton-le-Fylde, the noble Lord, Lord Alexander of Weedon and the noble Baroness, Lady Wilcox. They all kindly offered support and advice to help the charity to find its feet. It also had the advantage of securing the services of Mr. Guy Dehn as director. He has been indefatigable in assisting with this Bill and, indeed, with the work of the charity generally.
There is one other noble and learned Lord I must particularly thank. I refer to the noble and learned Lord, Lord Nolan. Under his chairmanship, the Committee on Standards in Public Life championed the work of the charity and the issue which lies behind this Bill. Indeed, the noble and learned Lord and his committee took up

889
the issue with such eloquence that I can best summarise the purposes of this Bill by quoting from his committee's second report:
"All organisations face the risks of things going wrong or of unknowingly harbouring malpractice. Part of the duty of identifying such a situation and taking remedial action may lie with the regulatory or funding body. But the regulator is usually in the role of detective, determining responsibility after the crime has been discovered. Encouraging a culture of openness within an organisation will help: prevention is better than cure. Yet it is striking that in the few cases where things have gone badly wrong in local public spending bodies, it has frequently been the tip-off to the press or the local Member of Parliament—sometimes anonymous, sometimes not—which has prompted the regulators into action.
Placing staff in a position where they feel driven to approach the media to ventilate concerns is unsatisfactory both for the staff member and the organisation".
While the committee's words referred explicitly to public bodies, the issue it addresses does sadly apply to the private and voluntary sectors as well.
The official reports in recent years into the Zeebrugge ferry disaster, the rail crash at Clapham Junction, the explosion on Piper Alpha and the scandals at BCCI, Maxwell, Barlow Clowes and Barings have all revealed that staff were well aware of the risk of serious physical or financial harm but that they were either too scared to raise their concern or that they did so in the wrong way or with the wrong person. This culture, which encourages decent ordinary citizens to turn a blind eye when they suspect serious malpractice in their workplace, has not only cost lives and ruined livelihoods, but it has also damaged public confidence in some of the very organisations on which we all depend.
The purpose of this Bill is to give a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way. Where a worker is aware of fraud, a price-fixing cartel, the sexual abuse of a child in a home or a danger to health, safety, or the environment, or some other malpractice, this Bill provides welcome and much needed guidance.
If today a worker feels unable to raise the matter with his immediate manager, for whatever reason, he may well feel that the only options are to stay silent or to blow the whistle in some underhand way, perhaps by leaking information anonymously to the media. Once this Bill is enacted and taken to heart by the British people, which I am sure it will be, there will be a much improved chance that concerns about dangers to the public interest will be raised and addressed within the organisation itself. Where there are good reasons why such concerns cannot be raised and resolved internally, the Bill sets out a tight structure whereby the concern can be raised outside the organisation, thereby protecting the public interest. Where the worker follows the Bill's framework and satisfies its requirements, he will be protected from victimisation and can bring a claim before an industrial tribunal if he is victimised.
As to that protection, the Bill provides that where a worker is disciplined or demoted for raising such a concern, he can apply for relief to an industrial tribunal
890
and be awarded such compensation as is just and equitable. Where, however, he is dismissed, his remedies are not set out on the face of the Bill but are to be determined by regulation. That is because the Government rightly recognise that the matter warrants careful and further consideration. There has been much support for the view that, like discrimination legislation, awards under the Bill should compensate for the victim's loss where he loses his job. There is alternatively the option, favoured by the Government, that the awards should follow the best available under employment law, such as those provided for health and safety representatives. These not only substantially exceed the normal awards in employment cases, but also include specific incentives to encourage the employer to take back a worker who has acted in the public interest. Bearing in mind the wider implications any departure from existing employment provisions will have, I hope the House accepts the Government's case that they should consider the matter further, not least in the light of the forthcoming proposals on fairness at work.
Your Lordships will have gathered that this Bill is to be part of wider employment legislation. However, recognising the importance of the issue, it covers individuals such as trainees, homeworkers and professionals in the NHS who are not normally protected by employment law. While its scope is wide, the House should note that it does not cover the genuinely self-employed, the intelligence services, the armed forces and the police. As to the last category, however, I am pleased to report that the Government undertook in another place to ensure that police officers are to be provided with comparable protection to that provided in the Bill.
I turn to how the Bill will work in practice. Clause 1 incorporates new provisions into Section 43 of the Employment Rights Act 1996. As a starting point, it clearly directs the worker towards raising the matter internally first. What will be Section 43C will afford protection where a worker raises within his own organisation an honest and reasonable belief about one of the specified malpractices. New Section 43E will provide like protection to staff within public bodies who raise such concerns with the sponsoring department.
The Bill then addresses the particular circumstances where an external disclosure of the concern is protected. First and most importantly, new Section 43F will provide something of a halfway house in that it recognises the particular role of regulatory authorities which are charged to oversee and investigate malpractice within organisations. Where a regulator—it might be the Financial Services Authority or the Health and Safety Executive—has been prescribed for the purposes of the Bill, a worker who contacts them will be protected if, in addition to the tests I have referred to for internal disclosures, he also reasonably believes the information and any allegation within it is substantially true.
Where a wider disclosure is made, the worker must not only pass the tests that apply to disclosure to prescribed regulators, but also the additional hurdles set out in what will be new Sections 43G and 43H. New Section 43G will address the circumstances in which a

891
disclosure is made to the police, a professional association, a regulator which has not been prescribed by Ministers, and the media may also be capable of protection. As to such disclosures, your Lordships will be pleased to note that these will not be protected where their purpose was the personal gain of the worker.
Apart from deciding whether the particular recipient of that disclosure was appropriate, the tribunal must be satisfied that that disclosure was reasonable, having regard, among other things, to the seriousness of the threat to the public interest, whether the danger is continuing or likely to occur again, whether the disclosure was in breach of an obligation of confidentiality owed to a third party and, where appropriate, whether use was made of any whistle-blowing procedure which the organisation had in place. Most importantly, the Bill indicates that such wider disclosures—wider than one's own employer or specified regulator—should be protected only where the concern had been raised internally or with a prescribed regulator first, in which the reasonableness of his response will also be the key issue.
This requirement within the Bill's structure that the concern should have been raised first does not apply where the worker can demonstrate a reasonable belief that he will be victimised or that evidence of the malpractice will be destroyed or covered up. Equally, no such conditions presently exist where the matter is exceptionally serious, such as the sexual abuse of a minor, an issue addressed in Section 43H.
As I hope I have made clear, this measure will encourage people to recognise and identify with the wider public interest and not just their own private position. It will reassure them that if they act reasonably to protect the legitimate interests of others who are being threatened or abused, the law will not stand idly by should they be vilified or victimised.
It is not my view, in the light of my experience with the charity Public Concern at Work, that serious malpractice is endemic or widespread in organisations throughout the country. However, I am satisfied that when it occurs, the law needs to be strengthened so that those decent people who too often stay silent for fear of losing their own job are protected. I mention as one example the case of Judy Jones who was the deputy matron in a nursing home in Yorkshire. She suspected that the manager of the home was sexually abusing women in his care suffering from senile dementia. She could not raise the issue with the manager or the owner who was the manager's wife. Her fear was that if she went to the authorities it would be the manager's word against hers and her career might be destroyed. Fortunately, with the assistance of the charity, she collected incontrovertible evidence before she contacted the police. It subsequently transpired that the manager had been sexually assaulting people in his care for some nine years; and last February he was gaoled for four years. As one victim's family said, "If it hadn't been for Mrs. Jones, it could still be going on and no one would ever have known".
I hope your Lordships will agree that the situation in which Mrs. Jones found herself is an invidious one and one which we should not allow to flourish unchecked.
892
This Bill addresses that dilemma in a sound and practical way while protecting the interests of responsible employers. As such, I commend it to your Lordships' House. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Borrie.)
7.42 p.m.
Baroness Turner of Camden: My Lords, I welcome the Bill. It provides long needed protection for employees who whistle-blow on unsafe, fraudulent and other undesirable practices by employers. I am glad to note that it is welcomed by both the CBI and the TUC, and although substantially about employment rights it is regarded as a public interest measure.
I am particularly glad that it has been introduced. I recall with, I may say, some pride that when I had been a Member of your Lordships' House for several years I was successful in introducing a Private Member's Bill designed to give employment protection to employees engaged in North Sea oil ventures who blew the whistle on unsafe practices. My noble friends Lord Wedderburn and Lord McCarthy and I worked together to introduce the Bill following the appalling "Piper Alpha" disaster. Many of the employees were engaged on short-term contracts and although some were apprehensive about the level of safety precautions they were unwilling to risk continued employment by exposing the problems involved. I was briefed by my union, MSF. We managed to get the Bill through this House and it was later approved in another place. It was then absorbed into a more comprehensive Health and Safety at Work Act.
The present Bill goes much further than that of course. It deals not only with health and safety issues, but fraud and other malpractices. I note from the Bill that a qualifying disclosure within the terms of the Bill occurs when this is made to a "prescribed person". It seems to me that for some workers an appropriate person might often be his or her union representative. The union might be expected to have the appropriate knowledge of the way to proceed and whether the failure concerned was of a sufficiently serious nature to qualify under the terms of the legislation. That raises a further point in my mind. It might well be said that a recognised union holding a collective bargaining agreement with the employer is clearly an appropriate person within the meaning of the new Bill. However, as the "Piper Alpha" disaster disclosed, unsafe practices often occur in situations where the employer is anti-union and refuses union recognition, making it as difficult as possible for the union to recruit.
In such circumstances, the individual employee who has detected something unsafe, or a serious failure within the meaning of the legislation, is in even more need of protection if he reports the circumstances to his union official. I would welcome the Minister's comment on that.
Other issues also occur to me. I note that enforcement of employees' rights is, as one would expect, ultimately to be a matter for employment tribunals and, I assume, for the EAT. I am concerned, as many are, about the

893
level of work that might be imposed upon the system. It is true that a recent Bill, now the Job Dispute Resolution Act, has introduced another means of dealing with straightforward unfair dismissal cases via arbitration. That should lighten the workload somewhat.
However, colleagues who are more involved with ETs and EATs than I am are concerned about whether sufficient resources will be made available to deal with these new tasks. I therefore welcome the Minister's comment on that when he replies to the debate.
Finally, I wish to raise a point that has already been discussed in Committee in another place—the cap on levels of compensation. I think that the issue could be important. I note that the Government wish to stay within the limits imposed within employment law. However, as my noble friend Lord Borne said, the Bill is intended to deal with fraud and malpractices of all kinds. The Maxwell and BICC cases come immediately to mind, but there have been other less publicised cases.
People capable of bringing malpractice to the attention of the appropriate authorities in such cases are likely to be specialist and managerial personnel. It is clear from what is now known about the Maxwell affair that people who might have been able to throw some light on what was going on were too intimidated to come forward. They would have risked not only the jobs they then had; they might not have been able to find anything else in the same specialism. In other words, a whole career could have been put at risk. In such circumstances, a cap does not seem a good idea.
There is an even more pressing need to look at the cap. The employer is ordered by an employment tribunal to reinstate an employee. Let us suppose that that employer stubbornly refuses to do so. That is likely to occur in only a small minority of cases. But in such instances, when the case is finally settled, a cap on compensation offered does not seem appropriate. When I was a union official, I remember a case where reinstatement was ordered by the tribunal. It took four years before the case was settled. In such circumstances, it does not seem reasonable that a cap should be applied to the compensation eventually paid.
I am pleased that it is accepted that there has to be some protection against false allegations. That is clear from the Bill and from what my noble friend Lord Borne said. Presumably that is the reason for saying that qualifying disclosure will not apply if the individual makes disclosure for personal gain. I welcome that.
In these days when the media are so totally irresponsible, and interested so much in sensation, that is important. I note that in another place my honourable friend made it clear that simply going off to the press rather than attempting to raise the issue in the first place internally would not be acceptable. The disclosure should be to a "prescribed person" able to deal with it in an informed and responsible way.
I commend the Bill. I have raised a few points that I think are of some interest. However, I have no doubt that overall it is greatly to be welcomed. I congratulate my noble friend on introducing it.
7.48 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, I welcome the Bill and support it. I congratulate my noble friend Lord Borne on introducing it to the House. I have to declare an interest, although my noble friend has declared it for me. I, too, am a member of the charity Public Concern at Work. I supported that organisation when it was founded because of my practical experience as a trade union officer. Over a number of years I have seen the often traumatic situation in which employees found themselves.
As a result of those experiences, I quickly formed the view not only that this kind of measure was necessary, but that it would be brought about only if there was wide consensus across the whole range of employment activity, not merely among trade unions but among businesses and various institutions. It is to the credit of the charity that it has been able to bring together a large group of support. One would expect support from the TUC; but it has come also from the CBI, the Institute of Directors and large public companies, and not least from both Government and Opposition Benches in the other place.
This is a practical Bill. It is short—it has 18 clauses—but, my goodness, I wish it had been around some years ago! It would certainly have made the lives of employees in Britain in certain selected cases far easier, and made it easier for them to rest in their employment. Such matters can be traumatic. Even if an employee is represented by his or her union, the issue that he or she may feel they need to raise may not necessarily affect them individually; it may affect a third party. It may be a health and safety issue in relation to the production process which does not affect the employees, but affects the user of the goods in question.
I was involved in a practical way in the early stages of the Maxwell pensions scandal. I know one person in the UK who will be delighted today that the Bill is being introduced in this place. He is a man called Harry Templeton. He was a trustee of the Maxwell pension fund at the Scottish Daily Record. Harry had been employed by the company for many years before Maxwell owned that newspaper. From the information he had, Harry Templeton felt that the pension fund was going wrong, and he raised the issue at a formal trustees' meeting. As a result, he was sacked by Maxwell, who would not take him back.
As a result of legislation enacted by the previous government, it was impossible for us to take collective industrial action to force his re-employment. As general secretary of the trade union, the best I could negotiate for Harry in those "hands tied behind our backs" circumstances was a cash settlement. Although the settlement was high, that outcome was disgraceful. He had raised a genuine concern many months before that scandal in overall terms hit the headlines. Had this legislation been on the statute book, it would have helped Harry Templeton and would have kept him in employment. And—who knows?—it may have helped those thousands of workers who subsequently had many sleepless nights—many of whom indeed lost much of their pension provision.

895
Having a piece of legislation on the statute book is a great thing. If you are a member of a trade union, the union will make sure that you know about it. But if you are not in a trade union, it is important that you know that the Act is there. I can think of many isolated situations in which an individual employee knows that something is wrong, wants to speak out and yet does not know where to turn. In those circumstances, it is not unusual for an employee possibly to visit a citizens advice bureau, where he may receive help. But how can he or she share what may be private information without being protected?
As a trade union officer, I raised those kinds of issues. However, I was not employed by the company; I was a full-time union officer. One of the concerns I have in relation to the Bill, welcome though it is—and it is a tremendous step forward—is the fact that the Bill does not provide specifically and clearly for trade union representatives to be able to speak out on behalf of an individual employee who, despite legal protection, may be absolutely terrified about raising an issue. Working people quite often do not have great self-confidence. If they know that something is wrong, they need an arena in which to discuss the matter. In some cases that situation is covered under the Bill. But sometimes, in order to have the self-confidence to raise such issues, people may need a third voice to speak for them. I am therefore concerned that the Bill does not provide clearly for such trade union representation.
My noble friend Lady Turner of Camden raised the issue of capping on compensation. I am concerned about that matter too. It may be argued that if reinstatement is required and the employer does not do it, capping is not an issue. I do not accept that. I see this as a weakness that needs to be addressed.
Those are my two key concerns. However, they do not in any way prevent me from giving the Bill my wholehearted support. It is a step forward. I know that many employees will feel a confidence that they may not have felt before when they believe that matters are going wrong—and not necessarily for them as individuals: in the example I have given, Harry Templeton was concerned about his fellow workers; and when he spoke out, he lost his job. This Bill will help prevent such a situation. It will build on employment guidelines to which employers will have to refer when they would like to respond aggressively—as they do from time to time—and in a way that is damaging to the employee. I support the Bill despite those two reservations. Perhaps the Minister will comment on those points when he replies.
7.56 p.m.
Lord McCarthy: My Lords, this is an excellent and overdue Bill. Those of us on this side of the House only want to probe as to the detail of the Bill because it has not received a Second Reading before coming before the House.
All I wish to do is explore a point made by several previous speakers. It relates to the role of the employer.
896
As the noble Lord, Lord Borne, said, the assumption behind the Bill is that in the first—the primary—instance, the worker who has a problem will go first to his or her employer. The explanatory memorandum states that in general it is envisaged that the matter has been raised with the employer, or with the prescribed regulatory body.
I suggest that we examine the type of matters for which this Bill will be used. We may take, for instance, the example of Mrs. Jones, cited by the noble Lord, Lord Borne. That relates to the type of matter that an employee might very well feel he or she cannot take to the employer. In cases such as a criminal offence, a miscarriage of justice, some danger in the machinery, some situation where an employee believes the employer has concealed information, to whom does he or she go? On the employer's side, one can go to an immediate superior with these matters; or possibly the level above that; or perhaps the managing director? To whom do you go? I suggest that in the majority of cases employees may very well not feel confident in such a case in going to anybody on the management side. Yet the Bill envisages that in general the matter has been raised with the employer. I question how far that is likely to be the case, and ask the Government to comment.
It will be said, as it was by the noble Lord, Lord Borne, that there are exceptions. If I am correct, the Bill envisages six situations in which a person does not go to his or her employer. The first is when the matter does not involve the employer but is related to the misconduct of some other person. In that case a person is covered if he or she does not go to the employer first. A second exception, introduced in new Section 43D, is when an employee goes to a lawyer. In relation to the comment made by the previous speaker, why does that not apply if he or she goes to the union representative? Why should the union representative not be protected in the same way? That is the second case: the employee may go to some adviser, possibly a lawyer. If a lawyer is consulted, the employee does not have to go first to the employer. As I understand it, if the issue has no element of confidentiality, a person might be able to avoid the employer. If a person is likely to be victimised or penalised in some way, that may be possible. If there is some residuary body, such as the Health and Safety Commission, it may be possible to refer the problem to that body rather than go to the employer. And the most difficult circumstance for the average worker, introduced in new Section 43H, is if the employee takes the view that it is an exceptionally serious matter.
How on earth does the average worker know that it is an exceptionally serious matter, not just a serious matter or not just an exceptional matter? It must be "exceptionally serious". How does the employee know that? The noble Lord, Lord Borrie, gave us an example, but it was not a list. That is the part of the Bill that I find unsatisfactory in its present state.
I believe that in many cases—I cannot say the majority—workers will feel that they do not wish to go to the employer; they wish to go elsewhere. Unless the Government tell us that there will be specified residuary bodies established across the whole area covered by the

897
Bill—and maybe they will tell us that tonight—so that everyone will have someone to go to, it will remain a problem. Unless one receives guidance on what is an "exceptionally serious" matter, one is in difficulty.
I would like the Government to comment on those matters. Shall we have better definitions in the regulations? Will the regulations make clear how the various exceptions relate to each other? Surely, after the Bill is passed there must be something like a code of practice or an explanatory memorandum. The noble Baroness said that the citizens' advice bureaux could help. Yes, of course, but we cannot expect them to advise in a vacuum as to what is an exceptionally serious case. We must have guidance; there must be documentation if we are to give people some idea so that they know when they are protected and when they are not. Nevertheless, it is an excellent Bill and we look forward to hearing what the Minister says.
8.1 p.m.
Lord Newby: My Lords, from these Benches we too welcome the Bill and are grateful to the noble Lord, Lord Borne, for introducing it. I myself am grateful to Guy Dehn of Public Concern at Work for his briefing and advice. It surely must be in the public interest to offer protection to workers who draw attention to malpractice in the organisation which employs them, whether that malpractice relates to a straightforward criminal offence, damage to the environment or threats to the health and safety of others.
The key aim of the Bill is to change the culture on disclosure. Employees will know that they have legal support for acting in the public interest if they sound the alarm on malpractice. Equally, employers will also know that they will not be able to use the threat of victimisation to prevent concerns being raised.
As a number of speakers have already made clear, the Bill will not, of course, make it easy to be a whistle-blower. Employees who discover malpractice will still need considerable courage to raise the issue with their employer, because in some cases they will be unsure about whether there is complicity on the part of the person to whom they are making the disclosure and because victimisation can take many forms over an extended period, some cases of which can be extremely difficult to prove.
I do not intend to detain the House for long, but, like a number of other noble Lords, I have several questions for the Minister. First, the Bill does not provide help in cases where disclosure of information involves the discloser in a criminal act. This means that a civil servant who breaks the Official Secrets Act is not protected by the Bill. So, if a Foreign Office official believed that officials and Ministers were colluding, say, to break UN sanctions and he raised the matter, perhaps with the chairman of the Select Committee on Foreign Affairs, he would not be protected by the Bill because such a disclosure would clearly be a breach of the Official Secrets Act.
In previous such cases, the civil servant has not necessarily faced prosecution under the Official Secrets Act because the government of the day have
898
accepted, however shamefacedly, that the disclosure was in the public interest. I assume that in future cases of that kind, in which the Government did not prosecute under the Official Secrets Act, that would not trigger Section 43B(3) of the Bill as it appears that this provision will only apply where an individual is convicted. I would welcome an assurance from the Minister that that is indeed the case.
Secondly, as has previously been mentioned, the Bill specifically excludes the police. At first sight, it seems a fairly major omission. I realise that in another place, as the noble Lord, Lord Borrie, explained, an assurance was given by the Government that the police would be given equivalent protection to that provided by the Bill. I wonder whether the Minister could explain what form that equivalent protection might take.
Thirdly, it is all very well passing the Bill but, if it is to be effective, both workers and employers must be aware of its provisions. Given that the support received from the CBI, the IoD and TUC among others, will Ministers hold discussions with them about how information about the Bill will be disseminated so that all those who should know about the protection it offers do indeed have that information?
Fourthly, while not necessarily wishing to have a requirement in the Bill for a formal regular report by the Government to Parliament on its operation, I believe that its operation should be subject to formal review. Could Ministers now or at Committee stage give an assurance that this will in fact happen and possibly explain what mechanisms may be adopted to ensure that it does?
In raising those questions, I do not wish in any way to impede the passage of the Bill or to question its overall aims. We look forward to seeing it on the statute book.
8.5 p.m.
Lord Fraser of Carmyllie: My Lords, as with all other speakers who have contributed to the brief debate, I congratulate the noble Lord, Lord Borne, on introducing the Bill into your Lordships' House, just as it was introduced into another place by Mr. Richard Shepherd. He has always been a brave advocate of what have not always been entirely fashionable causes. From these Benches, we hope that we can apply ourselves to the Bill in the most constructive manner.
Listening to the noble Lord, Lord McCarthy, I had an unfortunate image that perhaps the wheels of this wagon were beginning to grind into the sand as we went into problems that seemed to me to be more likely to impede the passage of the Bill than to accelerate it. However, doubtless when we reach the Committee stage we can deal with such matters more carefully.
The noble Lord, Lord Borrie, and those who promoted the Bill in another place have at least attempted in the most constructive fashion to address the dilemma which will always exist. Is it more appropriate that internal disclosure should be pursued first or that there should on every occasion be the opportunity to go outside the organisation? If such a black and white set of circumstances were promoted,

899
I should have thought it was potentially destructive of the cohesion of any organisation, whether public or private. I would not advocate, as in the jurisprudence of the European Court of Human Rights, that one should always be required, by parallel, to exhaust domestic remedies before one seeks to pursue an external remedy.
Whether the exceptions provided in the Bill are entirely right is a matter for constructive debate. However, the attempt made in the Bill to require an approach to internal disclosure before an external one seems essentially the correct approach. When I had responsibility for the draftsmen, I thought that the approach of textual amendment to existing legislation was entirely the right way forward. Now that I sit on this side of the House, my enthusiasm for that approach has waned somewhat. It is much more difficult to understand the Bill in all its detail immediately where that approach has been followed. So if I have some of the detail wrong, I hope that I will be corrected by the noble Lord, Lord Borrie, or by the Minister later.
However, apart from those general observations, I have just three points I wish to make. The first is on the police. The noble Lord, Lord Borrie, correctly recalled that in another place, as the noble Lord, Lord Newby, observed, the Government indicated, as I understand it, that there would be comparable protection for police officers to that provided in the Bill. Of course, I am delighted to hear it, but it seems to me that given the civilianisation of much of the police, it is a clumsy solution to what will go on in police stations the length and breadth of the country if there are to be two separate systems to deal with a whistle-blowing incident. I hope that we may explore that a little to ascertain whether we can draw the two together more effectively.
Secondly, as I understand it—this has to be a change introduced into employment law—if anybody is employed in national security they are not to enjoy the protection afforded by this Bill. I do not want to engage in a debate about the extent of the Official Secrets Act and whether it is too great or too restrictive, but it must follow that there are potentially circumstances where the security services are engaged in some activity over which there ought to be some whistle-blowing power, internally or externally, which in no way prejudices national security or even what is presently defined within the Official Secrets Act. Again, perhaps at some point we can explore whether there is a way to introduce protection for those people. If the head of one's department in the security services has plush carpets and is wasting money on wonderful flocked wallpaper or taking extravagant holidays, is one to have no opportunity to blow the whistle about that? That is something we need to address.
My third point, which was fully and accurately touched upon by both the noble Baronesses, Lady Turner and Lady Dean, is the issue of the cap on damages that would be awarded under the Bill. I hope I have these figures correct. My understanding is that the maximum award will be £45,000. That figure may not be absolutely correct, but the noble Baroness, Lady Dean, made reference to the Maxwell pension scandal, and scandal it was. It is outrageous that someone like Mr. Templeton should have been sacked in the way he
900
was. But without asking her to reveal or disclose any figures that she successfully negotiated on his behalf, in a scandal of that magnitude with the level of expertise that senior managers must have had, the type of jobs they occupied, the degree of specialisation that they had and the very narrow market place they dealt with, I am concerned about the limitation of damages that may be awarded.
Lord Borrie: My Lords, as there is a reasonable amount of time left at our disposal, perhaps I might intervene to refer the Minister to what Mr. McCartney said on 24th April. He said that the Government favoured the approach available currently for health and safety disclosure, making the point,
"Contrary to apparently popular belief, the sums available in such cases are by no means insignificant. Where someone is dismissed unfairly and does not get his job back despite a re-employment order having been made, the compensation is based on three times annual salary".—[Official Report, Commons, 24/4/98; col. 1137.]
He goes on to refer to various people on quite high salaries and three times such a salary would be much higher than the limits mentioned by the noble and learned Lord.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Lord, Lord Borrie, and thankful that I put in my earlier caveat that I was not entirely sure I had followed all the detail from the Bill. But even the quotation from Mr. McCartney seems to indicate that the damages to emerge in circumstances where there has been an order to re-employ and that order has been rejected—I doubt a tribunal would have invited Mr. Templeton to go back to his job and, if it had been offered, I doubt that he would have wished to take it—are limited.
My point is simply this. If serious scandals have to be addressed and serious issues arise for senior managers to consider when they decide whether or not they will go outwith the organisation and make appropriate complaint, we ought at least to examine in your Lordships' House whether the appropriate levels of damages are sufficient. Having made that observation and spelt out the areas it may be appropriate for us to examine in Committee, I repeat my congratulations on the noble Lord's introduction of the Bill.
8.15 p.m.
Lord Haskel: My Lords, first, I too congratulate and pay tribute to my noble friend Lord Borrie on taking forward this Bill. As my noble friends said, it deals with a subject of great importance to workers, employers and the public at large. I thank my noble friend Lord Borrie for explaining the Bill. Much valuable work has been and continues to be carried out by the charity, Public Concern at Work, a charity my noble friend was instrumental in establishing. I congratulate also my noble friend Lady Dean on the part she played in the charity.
The Government have given full support to this important Bill. It will provide a remedy in cases, we

901
hope few in number, where a worker was victimised for quite properly raising concerns about wrongdoing. It is plainly right that such procedures should exist, as my noble friend's quotation from the committee amply demonstrated. He made the point that it will help to encourage a climate of openness in the workplace and reduce the likelihood that failures or malpractice will occur. It is clear from the public consultation on the Bill that it has widespread support from all sides. The consultation was thorough and was carried out largely by Public Concern at Work. It resulted in over 80 responses from a variety of organisations, including employer organisations such as the CBI, the Institute of Directors, individual trade unions as well as the TUC, lawyers and others.
The Bill aims to encourage good practice and ensure that problems are dealt with at the earliest opportunity, without public exposure except in extreme circumstances. The Government join the noble and learned Lord, Lord Fraser, in the hope that the Bill will have the positive effect of encouraging employers to follow best practice by introducing procedures—or using existing ones—which will make it easier for workers to inform their employers about their concerns.
This Bill is very much in keeping with the Government's aim of encouraging best practice throughout industry. The procedures that employers adopt may vary according to their needs. But the Government hope that employers will ensure that they are effective and help promote greater openness in the workplace. For example, they may build upon existing grievance procedures or it may be more appropriate to designate a senior manager, the company's lawyer or an auditor as the person with whom concerns should be raised.
My noble friend Lord McCarthy asked about alternatives to the employer. The Bill provides powers for the Secretary of State to prescribe people or bodies to whom workers can turn as an alternative to their employer. Once the Bill has completed its parliamentary passage, we would intend to bring forward an order covering suitable bodies such as the Health and Safety Executive, the Environment Agency, OFT, the DTI's Insolvency Service and others. However, the Bill also protects workers where it is appropriate for them to disclose information to someone other than their own employer or the designated regulator. That may happen where it is unreasonable to expect internal disclosure because the worker reasonably believed that he or she would be victimised or that information would be covered up if the employer were alerted. Alternatively the worker may have raised the matter internally but been ignored or the wrongdoing may be so exceptionally serious that it must be disclosed immediately rather than delaying to find out whether there was a relevant designated body. In such cases the worker will be protected only if he or she acts reasonably—which is carefully defined, as my noble friend Lord Borne reminded us, in Clause 1, subsection 43G(3). There can therefore be no doubt about that.
902
I should like to make clear that the Bill does not intend to increase the risk of employers being sued for breach of confidence. The courts apply a public interest test when considering whether to enforce a duty of confidentiality.
This Bill, in particular Clause 1 and proposed new Sections 43G and 43H, lays down a series of reasonable requirements which a worker must follow to attract protection. The way these provisions operate, and in particular the tests in new Section 43G which refer among other things to whether the disclosure breaches a duty of confidentiality, means that any disclosure protected under the Bill would be likely to be within the public interest test. As a result, the employer would not be liable for the worker's breach of confidence.
My noble friends Lady Dean, Lady Turner and Lord McCarthy asked about trade union officials. The Government hope that employers will work with employees and their representatives, including trade unions, to put in place appropriate procedures to enable internal disclosures to be made. It is possible that trade union representatives may be the appropriate people to whom disclosures will be made as part of these procedures. In those circumstances, a disclosure to a trade union official would be a protected disclosure. We would certainly encourage employers and workers to identify the most suitable procedure for their circumstances. However, where trade union representatives are not part of the internal disclosure procedure, a disclosure made to them would have to be considered under Section 43G. Provided that the disclosure met the test in that section, it would be regarded as a reasonable disclosure and thus protected.
My noble friend Lady Turner asked about the additional workload for employment tribunals. The Government believe in a partnership approach where the best companies recognise their employees as partners in the workplace. Our new agenda is providing minimum standards in the workplace to underline this approach and we are aiming to encourage a change in workplace culture where disputes are resolved in the workplace by employers, workers and their representatives working together. This Bill is part of that agenda and will encourage issues to be resolved internally without the need for recourse to tribunals. However, it is inevitable that there will be disputes which cannot be resolved in another way. The Government have taken action to relieve the burden on tribunals. I was glad to support the Employment Rights (Dispute Resolution) Act, introduced by my noble and learned friend Lord Archer of Sandwell, which gained Royal Assent on 8th April. That Act will improve and streamline tribunal procedures and promote alternative dispute resolution. It is an important measure to help tribunals cope with their potentially increasing workload. My noble friends Lord McCarthy, Lord Borne and Lady Turner all contributed to improving the Bill as it passed through your Lordships' House.
The noble and learned Lord, Lord Fraser, and my noble friends Lady Turner and Lady Dean asked about the cap on the compensation of higher-paid employees. This is an employment rights measure. The Government consider it important that compensation should be in line

903
with current remedies. We believe that there is scope for those to provide adequate compensation. Perhaps I may give the figures to the noble and learned Lord, Lord Fraser. Awards made under the Bill will attract special payments ranging from £17,400 to £47,600 if based on the health and safety model. However, as the noble and learned Lord mentioned, much higher awards are possible where a re-employment order is made but not complied with. Compensation in that case is based on 156 weeks' pay. Higher earners would therefore benefit. Someone earning £200,000 a year could receive £600,000.
Noble Lords have said that employees may not seek re-employment because that is not what they want. However, the provisions of the Bill would protect them from victimisation if they were reinstated. I suppose that my advice could be that they should seek re-employment, as my noble friend Lord Borrie suggested. As I said, tribunals are able to award considerably larger amounts where a re-employment order is not complied with. However, we share some of the concerns of noble Lords. My honourable friend the Minister of State said in another place that in the longer term we will wish to consider whether the limits and the arrangements for reviewing them work in the best way to meet our aims. So I hope that we will be able to satisfy the concerns of my noble friend Lady Dean's friend Harry Templeton.
My noble friend Lord McCarthy asked about a code of practice. The Bill does not include an order-making power for a statutory code of practice. However, we will be preparing guidance on the Bill which will help employers and workers to understand it. This will include the use that should be made of internal company procedures and the conditions attached to protection when disclosure is made to others.
The noble Lord, Lord Newby, asked why the Bill does not override the Official Secrets Act and other statutes. It is not the intention of the Bill to override statutory provisions which have been agreed by Parliament. They have particular intentions. If they were unjustified they would need to be changed for all purposes, not just those in the Bill. The noble Lord, Lord Newby, and the noble and learned Lord, Lord Fraser, asked about the position of the police. The police are office-holders, not employees, and are covered by their own separate regulatory regime. For that technical reason it is necessary for any changes to be made by the Home Office under its regulations. The important point though is that the Government have agreed that the police should be covered by similar protection. It is a secondary matter how that will be achieved.
The noble and learned Lord, Lord Fraser, asked about the security services. All people who work for the security and intelligence services, including contract workers—cleaners, drivers and so on—are subject to security vetting. That is potentially because they have access to sensitive material. Such staff are more of a risk in not appreciating the implications of information they may disclose. The security and intelligence agencies use contractual clauses to restrict disclosures. This is more specific than general powers conferred by
904
the Official Secrets Act. Clause 1, new Section 43J, of the Bill, however, would prevent such contractual clauses—hence the exclusion.
I think I have responded to all the points raised in the debate. We believe that the protection in the Bill for conscientious workers is long overdue. I therefore join my noble friend Lord Borrie in commending the measure to the House.
Lord McCarthy: My Lords, before the noble Lord sits down, in the light of what he has said about trade union representation, I hope that the Government will look kindly on an amendment to new Section 43D, which at the moment reads:
"A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice".
Surely the Government would look kindly on an amendment which stated,
"obtaining advice from a recognised trade union".
Lord Haskel: My Lords, the short answer is that if the noble Lord would like to table an amendment we shall certainly consider it.
Lord Borrie: My Lords, I thank my several noble friends and other noble Lords for taking part in this debate and for welcoming the main thrust and purposes of the Bill. I am particularly grateful to the Minister who has comprehensively answered a large number of questions raised in the debate and done so in a most helpful manner. I particularly welcome the fact that he said that the Bill is not intended to increase the risk of employers being sued for breach of confidence. That was a most helpful comment.
Obviously, there is no need for me to duplicate or replicate the many points the Minister made. As regards my noble friends Lady Turner and Lady Dean and also my noble friend Lord McCarthy and trade unions, although the phrase "trade unions" does not appear in the Bill, there is no doubt whatever that they are, have been and will be most helpful in the preparation of codes of practice and other forms in enabling workers to take advantage of the Bill and to bring about the change of culture to which the noble Lord, Lord Newby, referred. Trade union representatives will inevitably and happily be most helpful in their advisory role which clearly is needed if only for the types of questions which my noble friend Lord McCarthy very properly raised concerning the difficulties of interpretation. However good the Bill is, I suggest that there will be difficulties of interpretation. This Bill will become a statute which will not be easy for the ordinary worker in the workplace to interpret without some help. Undoubtedly, trade unions will have a role in that.
I thank noble Lords for their contributions and I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Government of Wales Bill
8.31 p.m.
House again in Committee on Clause 5.
Clause 5, as amended, agreed to.
Clause 6 [Additional member system: calculation of electoral region figure]:
[Amendment No. 19 not moved.]
Lord Elis-Thomasmoved Amendment No. 20:
Page 4, line 13, leave out ("the aggregate of one and") and insert ("a divisor determined by").
The noble Lord said: Before we broke for dinner, the noble Lord who leads for the Scottish section of the attack from the Opposition Benches referred to my right honourable friend in another place, Mr. Ron Davies, as "Ron of the Assembly". Clearly, he has not been watching enough Welsh movies. In his early career our great leader and national hero, Ron Davies, was known as "Ron the Rents" when he was the rent rebel of Bedwas & Machen. More recently he has been known in the style of "Davies the Ocean" and that great entrepreneur from Wales as "Davies the Assembly". No doubt his noble friend on the other side of the Chamber is known as "Roberts the Doom".
But that is by way of enlivening my amendment, which is on a technical issue. However, it is an issue of principle. It relates to the formulae used in the allocation of seats in relation to votes in the proportional representation system. As the noble Lord, Lord Mackay, intimated earlier, obviously, how one fiddles or twiddles the electoral system affects the results. It is important to point out that the formulae for distributing the votes (as aggregated for the regional additional members) affects the election of those members. Some formulae are more party-friendly to certain parties than others. The d'Hondt divisor, which the Government have adopted for the European Parliament, the national assembly and the Scottish parliament, is a system which, because of its way of operating, favours the larger parties, but clearly the system I propose in this amendment and the divisor that I have set forward tends to favour smaller parties. That should not come as a surprise to the Committee.
The intention behind looking at the whole question of how the divisor operates in relation to the allocation of votes to seats is to draw attention to the fact that we need to review these aspects as well as the number of members who are elected. I had an assurance earlier from the Solicitor-General that the question of the way in which the proportional system operated would be reviewed after the first election. Can he assure me that the formulae or the mathematics of the aggregation of votes to seats will also be reviewed as part of any review that may take place?
I shall not go into the detail of the Sainte-Lague formula or my version of it, which appears here except to say that in the system proposed in the amendment there is a bias in favour of the smaller parties just as there is under the d'Hondt rule favoured by the Government, a bias against smaller parties. I take as my Bible on this the great work by Arend Lijphart entitled
906
Electoral Systems and Party Systems: a study of twenty seven democracies 1945–90 which I am sure the Welsh Office will have read in detail, along with all its other preparations for this Bill. I beg to move.
Lord Mackay of Ardbrecknish: This is an interesting amendment. Perhaps I may ask the Minister to justify—as he jolly well ought to do—the particular system chosen by the Government. As the noble Lord, Lord Elis-Thomas, rightly said, they chose the d'Hondt system. That means that the first time one divides the total number of votes cast for all the parties in the second ballot. The second time, one divides it by the number of seats won the first time round, plus one. In some of the examples I gave earlier on, that means that those parties which had achieved no seats the first time round have a divisor which is set at only one. The next time one party gains a seat, the new divisor for that party is the number of seats won, plus one again. So it goes on until all four seats have been apportioned. That is the d'Hondt system, named after a mathematician. I cannot remember when he lived, but it was some time ago.
There are variations of it. One of the variations is called Sainte-Lague. I am not sure how to pronounce it and no one has helped me. Everyone gives a different pronunciation. Under that system, the divisor is one and then it goes up to three, five, seven and nine principles. Undoubtedly, that will help the smaller parties.
Earlier in the day I said that in my view proportional representation was a fiddled system. We did some fiddling before dinner and looked at various ways in which we could fiddle the number of additional members to achieve whatever result we wanted. Now we consider the divisors and how we can fiddle the different results. I suspect that, given some time and a good computer, I could devise a system which meant that Plaid Cymru won all of the seats regardless of the vote to begin with. That might he quite hard, but could try.
The Sainte-Lague divisor is one, three, five, seven, nine. There is a variation of that which means that on the first divisor the square root of two that is, 1.4 is adopted. One divides by 1.4 and then three, five, seven, nine as one goes up the list. The d'Hondt system is used in Luxembourg, Portugal, Spain and Holland. The Sainte-Lague system is used in some countries. The modified version which begins at 1.4 is used in Denmark, Norway and Sweden. I am not entirely sure where the noble Lord's variation of the Sainte-Lague system is used. That starts at two and not at the square root of two and then three, five, seven.
But all of the systems are designed to try to achieve proportionality in various ways and to various degrees. To a certain extent, you pays your money and takes your pick; or perhaps it rather depends on where you are in the electoral system. I have made it perfectly clear that despite the position in which my party finds itself in Scotland and Wales I would rather continue the first-past-the-post system. In that way the electorate has clear cut decisions. This afternoon I have been shown that the Government and the Liberal Democrats are at one in wanting to change. I am surprised that the Liberal Democrats have not intervened in this debate. I would

907
be interested to know whether they approve of the d'Hondt system. I suspect that the latter does not entirely favour that party and that one of the variations of Sainte-Lague would favour that party even more.
For my part, I disapprove of all of them. It is a case of a plague on all your house. However, I would like to know why the Government have chosen d'Hondt so that I can understand it. I should also like to know why the noble Lord, Lord Elis-Thomas, has chosen the two, three, five system instead of either one, three, five or the square root of two, three, five which at least appears to have the legitimacy that it is used in some other countries. I look forward to hearing the interesting mathematical treatise of the noble and learned Lord, the Solicitor-General, on voting systems and their divisors.
Lord Falconer of Thoroton: The treatise spoken to by the noble Lord, Lord Mackay of Ardbrecknish, provides a very firm foundation for the debate to continue. The d'Hondt formula was the formula on which we campaigned in the referendum, although not explicitly. The examples provided were based on that formula. The noble Lord, Lord Mackay, has also referred to the Sainte-Lague formula and pointed out, quite correctly, that the formula proposed by noble Lord, Lord Elis-Thomas, is not quite the Sainte-Lague formula but something between the two.
There is great debate about which system produces greater proportionality. One view is that Sainte-Lague produces greater help for smaller parties. The proposal of the noble Lord, Lord Elis-Thomas, is not quite the Sainte-Lague formula. Analysis suggests that where one has comparatively few additional members, which is the position here, Sainte-Lague will not produce a materially different result from d'Hondt—all the more so when one is not going all the way with Sainte-Lague, as in the amendment moved by the noble Lord, Lord Elis-Thomas. We adopt d'Hondt because it is simple, easy to understand and leads to proportionality. In the light of the number of seats that we are dealing with here it makes no difference. It seems to us to be the sensible method to adopt. It is the system on which we campaigned in the referendum. In our view, the argument is strongly in favour of using d'Hondt as opposed to any other formula.
I repeat what I said before dinner. The Secretary of State has made clear that the Government may look again at the electoral arrangements if in the light of experience after 1999 they fail to meet the expectations that we have of them. If the Secretary of State looks at the electoral arrangements and they fail to meet the expectations that we have of them we will have to ascertain the reasons for that, and that will necessarily include the system. On that basis, I respectfully ask the noble Lord to withdraw his amendment.
8.45 p.m.
Lord Elis-Thomas: I am grateful to the Minister for his response. To reply to the noble Lord, Lord Mackay, I have modified Sainte-Lague for the very reason that a system which raises the first divisor from one to 1.4 makes it more difficult for small parties to win their first seat. It is fairly obvious from where I come. I recognise
908
that the operation of the formula is almost like the d'Hondt system as far as concerns a party winning its first seat, because the difference between 1.4 and three is about the same as between one and two. But the Sainte-Lague system for seats afterwards respects the position of smaller parties more effectively. I have received an assurance from the Minister that this will be part of the review. In the spirit of unity which predominates in this Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 23 not moved.}
Clause 6 agreed to.
Clause 7 [Additional member system: return of members]:
[Amendments Nos. 24 to 26 not moved.]
Lord Williams of Mostynmoved Amendment No. 27:
Page 4, line 43, leave out from ("list") to end of line 44.
The noble Lord said: I beg to move Amendment No. 27 and speak also to Amendment No. 31. These are technical amendments which provide for the updating of party lists. It has two purposes: first, to provide for the deletion from the list of the names of any persons who have been elected to the assembly either from a constituency or at each stage in the allocation of the additional members. At present, the Bill provides only for the name of someone returned from a constituency to be deleted from the list. It does not provide for the name of someone allocated an additional member seat to be deleted. The existing wording is therefore defective since the system for the allocation of additional member seats would not work without this amendment.
Secondly, the amendments provide for the deletion of the names of any persons whose election has been declared void. This is important. Without it the name of an assembly member whose return had been declared void would still be "live" on the list which the returning officer would be obliged to revisit to determine who should fill the vacancy resulting from the member's election having been declared void. One would be faced with the absurd spectacle of a returning officer having to declare elected a person whose earlier election had been declared void. There is a similar provision already in the Scotland Bill.
Lord Roberts of Conwy: I am grateful to the Minister for these tidying-up amendments. One provides that if a listed candidate is elected as an assembly member for a constituency he or she ceases to be available for selection as a regional member from the list. I believe that to be a sensible provision. The rearrangement within the clause is a clear improvement. The words in parenthesis are commendable in that they anticipate a situation that might arise.
On Question, amendment agreed to.
[Amendments Nos. 28 to 30 not moved.]
Lord Williams of Mostynmoved Amendment No. 31:
Page 5, line 18, at end insert—
("() For the purposes of subsection (5) and section 9 a person included on a list submitted by a registered political party who is returned as an Assembly member shall be treated as ceasing to be on the list (even if his return is void).").
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Lord Elis-Thomasmoved Amendment No. 32:
After Clause 7, insert the following new clause—
SELECTION OF CANDIDATES FOR ASSEMBLY
(" .—(1) The Sex Discrimination Act 1975 shall be amended as follows.
(2) After section 49 there shall be inserted—
"Candidatures for National Assembly for Wales.
49A. Nothing in Parts II to IV shall render unlawful any act done by or on behalf of a registered political party within the meaning of the Government of Wales Act 1998 if it is an act done for the purpose of, or in connection with—

(a) selecting female candidates only, or male candidates only, for election to the National Assembly for Wales ("the Assembly"), or

(b) taking any steps preliminary to, or in connection with, such selection which either favour or subject to a detriment either female or male candidates,

provided that in the opinion of the party concerned the act in question is in the circumstances necessary to attempt to secure an equal number of members of the sex favoured as there are of the other sex as candidates of that party for election to the Assembly".").
The noble Lord said: This is an issue of some substance which was debated, again in detail, in another place on an amendment proposed by Julie Morgan, the honourable Member for Cardiff North, at col. 788 of the Official Report of 2nd March. I think it is important that we come back to these issues of relationships between the national assembly and gender. I do this not in the spirit of seeking to exploit any of the difficulties of other parties. I say that in advance of anything that may emanate from certain quarters in this Committee.
It appears to me from reading the Western Mail that the Conservative Party has a serious problem about gender balance in that the first 10 members selected for the assembly are of the male gender. I sincerely hope that at least a significant proportion of the members selected by Plaid Cymru, the party of Wales, will be of the male gender, in that I have some personal interest in that process. However, it is important that the whole question of relationship between sex discrimination legislation and the purposes of trying to secure gender balance in the assembly should be discussed in this debate.
The amendment seeks to ensure that there is no conflict between the wording of the 1975 Sex Discrimination Act or of the relevant European legislation as at present enacted and the process of selection of candidates for the assembly that could ensure that a registered political party could, in selecting candidates, take steps to achieve a gender balance in the selection. I am aware of the history of this matter and I do not need to repeat the various relevant legal cases
910
about which the learned Front Bench has much greater knowledge than I have. I am merely a literary critic and textual analyst, and they are learned lawyers.
However, I am well aware of the case of Jepson v. The Labour Party in 1996 and of the relevance of that the Marschall v. Land judgment, and also of the consultation undertaken by the EOC earlier this year on the whole issue. It would be helpful if Ministers could indicate where they are in relation to the consultation of the EOC and whether indeed there has been consideration of whether the present amendments to the Treaty of Amsterdam make the situation clearer in this whole area—positive non-discrimination on the basis of sex, racial or ethnic origin, disability, religious belief, age or sexual orientation, which are the new aspects of that treaty, enabling member states to take appropriate action in those areas. That would indeed make it possible for the United Kingdom or any other member state to take the kind of action in the selection of candidates that is set out in the amendment.
It is not clear to me from reading the relevant papers that there is a clear indication of the legal position. The fact that the decision of the industrial tribunal in the Jepson case was not appealed does not make it clear, from what I have observed, that there is no basis for affirmative action, as set out in the amendment. The reason why this issue is so important is because Welsh politics have been traditionally gender-dominated by males, and there is a strong sexist political culture in Wales which does not benefit our democracy. We need to ensure that the national assembly, from day one, is a representative and inclusive body—representative of the multicultural nature of our society and indeed also of both genders.
There has been serious under-representation of women at all levels on public bodies in Wales: at local government level, in appointments to various public offices and indeed in this Chamber and the other place, although the situation there has improved recently. We are, by perpetuating that under-representation, ensuring not only a lack of equality in terms of gender but an under-use of resource in society and in the nation.
The typical traditional attitudes of certain members of Welsh local government historically, and indeed as regards Welsh Members in another place historically, has been discriminatory against the development of balanced gender representation. Some of us over the years in our various political parties have sought to right some of these wrongs. So far as the party of Wales, Plaid Cymru, is concerned, we have adopted a procedure whereby constituencies will select, but there will be a decision by the party nationally to use the regional additional member system to correct any gender imbalance that may appear during the selection procedure by the constituency parties for individual constituencies in first-past-the-post. I am advised that this course is within the law as currently drafted in the Sex Discrimination Act.
We need to have a clear indication from government that the intention is that the national assembly shall be as gender balanced as possible and that all the political parties involved in trying to select candidates for the

911
assembly will ensure that this is the case. I hope that we will have agreement from all parties that this should be so and that my amendment will be supported. I beg to move.
Lord Thomas of Gresford: We on these Benches entirely support the sentiments expressed by the noble Lord, Lord Elis-Thomas. We are fortunate in the Liberal Democrats in Wales in that we have many young candidates and many female candidates. What we do question is whether this is something that requires statutory authority. We feel in the Welsh Liberal Democrats that we have the necessary procedures in place which will ensure gender balance. We agree with the noble Lord that that is an aim which we should seek to achieve.
Lord Mackay of Ardbrecknish: I am never very sure when we come to these matters whether people want to be purist and have a balance which is 50–50. That of course means that they have to manipulate the system in various ways: both the democratic system and the selection system. It will not surprise your Lordships to hear that I am always pretty nervous when I hear the case put for manipulation of the system in order to get what is now called gender balance.
It seems to me that it is treating at least some women as if they were the "token woman". I think we in the Conservative Party can speak with some strength in this matter because we are the only political party that has actually been led by a woman; my noble friend Lady Thatcher. I imagine that if I suggested for a moment that we elected my noble friend as a token woman, I would, in the phrase, have my head in my hands to play with. My noble friend was elected because she was seen to be the best person for the job, and she turned out so to be. She was elected entirely on her own merits and, as some of your Lordships who were in the other place at the time will recall, she was elected largely on her skills, shown during the passage of a Finance Act. Clearly, my colleagues in the other place then saw that she was head and shoulders above anybody else. They did not look upon her as a woman but as the most formidable person they could choose in order to oppose the Labour Party and to win the subsequent election. They were right in that.
I am not happy with the idea that we should look for balance in a kind of tokenist way. I would hate to think that when I was a government minister any of the four or five lady private secretaries I appointed thought of themselves as "token". I appointed them because in my view when I saw them at interview they were the best person—she in this case—needed to do the job. I did not do a mental calculation on the lines of "my last one was a male and so this one ought to be a female." I do not believe that political parties should be forced to do that. If they wish to do that then it is up to them, but the rules for political parties on choosing a candidate are entirely matters that they should attend to.
It is interesting to note that, if one allows democracy, the electorate, whether it be the narrow electorate of the party membership or the wider general electorate at large, may not always decide to go along with the rule
912
that the constituency ought to have a woman representative. It may decide that the man in front is the better person. The converse could happen; a woman might be given one of the seats designed for a man. It is a complicated business and I do not intend the Conservative Party to become involved in it.
The Labour Party has the problem. When it introduced women-only shortlists for parliamentary elections it was found to be acting unlawfully under the Sex Discrimination Act 1975. Jepson and Dyas-Elliott v. the Labour Party and Others in 1996 showed that and the Labour Party did not appeal. I understand that the legal position is still somewhat unclear. Several leading lawyers argue that parliamentary election processes are not subject to the Act.
The new clause introduced by the noble Lord, Lord Elis-Thomas, in order to try and help the Labour Party—such generosity of spirit does him great credit—would exempt the selection of candidates for the assembly from the provisions of the Sex Discrimination Act. As regards the Government's reply, we cannot lose; either we have the Solicitor-General or the noble Lord, Lord Williams of Mostyn. Either way, we shall have extremely good legal advice tonight and I trust that we shall have it free. I understand that the noble and learned Lord the Solicitor-General is to reply. Perhaps he will turn his mind to whether the amendment might contravene the EU equal treatment directive. In 1995, in the case of Kalanke v. Hansestadt Bremen, the European Court of Justice ruled that positive discrimination was unlawful. However, in 1997, the court ruled that where there are fewer women than men in a particular public sector post it was not unlawful to give priority to a suitably qualified woman so long as a better qualified man could still be chosen. That would seem to me to leave the matter open for political parties. That was the case of Marschall v. Land Nordrhein Westfalen.
It is worth noting that in January the Equal Opportunities Commission issued a consultation document which sought views on possible amendments to the Act, including changes to allow for positive discrimination. The Conservative Party has laid out its selection procedures. As I indicated earlier to the noble Lord, Lord Harris of Greenwich, who was interested in my political well-being, we in Scotland are selecting the panel from which the constituencies will choose. I am happy to say that we have a significant number of extremely well-qualified women. I should like to think that on their own merits they will beat some of the men on the short list. I would hate to think that I had to point to a woman and say, "This woman must be taken, good, bad or indifferent, just because she is a woman". I should like to think that all the women I have interviewed would tell me what to do with my nomination if I suggested that.
The Labour Party put itself into more difficulties because it decided to twin constituencies for the purposes of selection of assembly candidates. A selection board appointed by the Welsh party executive will interview prospective candidates for an all-Welsh pool, from which two men and two women will be chosen by each pair of constituencies. I am not sure whether the constituencies are paired in equality of

913
electoral chance or whether a good one is paired with a bad one. That would seem to be tilting the playing field. The two men and two women will then be ranked in order of preference by the local party members in one male and one female ballot. The winners in each will then be allocated to one or other of the two constituencies by mutual agreement. No decision has yet been made about how the regional lists will be ordered, but it will be interesting to hear whether anything can be said about it tonight.
However, a spanner was thrown in the works by the noble and learned Lord the Lord Chancellor when on 21st April he told a private meeting of MPs that in his view such twinning would be unlawful. One cannot get better advice than from the noble and learned Lord the Lord Chancellor. Although he is an English lawyer, he is a Scot, so he must be a cut above the others. I mean most of the others; just in case the two Ministers opposite have to do me a favour one day I put in a small caveat. In any event, if that is the view of the Lord Chancellor I would bet on the fact that it is unlawful. I understand that the Labour Party is still considering its position.
Why should I interfere in a private fight in the Labour Party? Why should the noble Lord, Lord Elis-Thomas, interfere? He has chosen to interfere in a helpful way and I hope that my suggestions, too, have been helpful to the Government. If I were the Government I would take the advice of the noble and learned Lord the Lord Chancellor because I cannot think where they would find better.
9 p.m.
Lord Islwyn: It is not often that I am slightly sympathetic to the point of view annunciated from the Front Bench opposite. I was slightly inflamed by the references made by my noble friend and colleague Lord Elis-Thomas to the situation in particular in South Wales relating to the male dominated political scene as he portrayed it. Of course, that had everything to do with the fact that there was a heavily industrialised society dominated by mining and steel and the men went out to work. They in turn participated in trade union and political affairs. From the point of view of political success, the Labour Party benefited from such a society.
I am a little nauseated by all the gender arguments that have been put forward. I believe that women should be encouraged in every way to participate in the political scene and every other social organisation in society. However, I resent such arbitrary mechanisms. I recall that during my 31 years in another place, particularly in the latter years, when one voted for the shadow Cabinet one first had to vote for four females. In other words, if we did not vote for the four females, our ballot paper was declared void. I always thought that was a load of rubbish.
With the rise of feminism as we see it today, surely women are coming to the fore and they can stand on their own two feet. If they are selected, all well and good; if they are defeated, so be it.
914
I recall too a situation which I witnessed firsthand, although I never took any part in that kind of argument. In my old constituency of Newport East, there were a great many what I would call, with great respect, working-class women. They were dead against the idea of any sort of arbitrary mechanism to ensure that they were elected. In fact, if the records are looked at, it will be found that just over two years ago at the annual conference of the Labour Party, there was a resolution from the Newport East constituency which was put forward largely, as I know, by the women members who opposed such an arbitrary mechanism.
I think of the noble Baroness, Lady Thatcher. She did not need any assistance nor did my noble friend Lady Castle, Jennie Lee, Joan Lestor and so on. They fought their own corner. As I say, with the rise of feminism, that will surely happen generally. When we go to Swansea this weekend for the Labour Party Welsh Conference, I hope that the delegates there will reject the idea of twinning. I entirely disagree with it and I speak as a member of the Labour Party for over 50 years. We want a democratic system, by all means, but with women as they are. They can put their own point of view so clearly and concisely that I believe that they can certainly stand on their own two feet now. I hope that that democratic system will prevail so that the constituencies will choose the best person available.
Lord Falconer of Thoroton: The proposed new clause put forward by the noble Lord, Lord Elis-Thomas, would have the effect of amending the Sex Discrimination Act 1975 to remove from its scope the selection procedure for candidates standing for the assembly. If that is removed from the scope of the Sex Discrimination Act, it would allow positive discrimination in favour of women.
We must remember that domestic legislation must be looked at in the context of European employment law, and I am grateful to the noble Lord, Lord Mackay of Ardbrecknish, for reminding us of that and in particular for reminding us of the equal treatment directive with which we must comply as a matter of European law.
During the debate in another place on the Scotland Bill on 31st March of this year, Mr. Henry McLeish, the Minister at the Scottish Office, explained that any amendment to the 1975 Act could be open to challenge as being in contravention of European employment law. He was putting that forward as the Government's view and that remains the Government's view as a matter of law.
Indeed, the Government take the view that the initiative lies with the political parties themselves to improve the balance of women and men in their selection procedures. They can provide the encouragement for more to participate in the political process, including the offer of relevant advice, training and support for women and men to come forward as candidates for selection. Furthermore, the Equal Opportunities Commission has offered to make available its expertise if parties would find that helpful. The EOC will advise parties on the training of women to seek candidacies and the training of selectors to ensure that there is no discriminatory practice of any

915
sort in the process of selecting candidates. I am sure that we all share the view that there must be no discrimination in the selection of candidates.
It would be remiss of me if I failed to mention that the Bill will require the assembly to have regard to the principle of equality in the way that it does business and in the exercise of its functions. The relevant clauses are Clauses 49 and 120, the latter also requiring the assembly, after each financial year, to publish a report outlining the arrangements made and assessing how effective those arrangements have been. That guiding principle of equality has been and will continue to be a constant. In the light of what I have said, I hope that the noble Lord will withdraw his amendment.
Lord Elis-Thomas: I am grateful to the noble and learned Lord the Solicitor-General and to other Members of the Committee who have taken part in the debate. This is one of the few areas where I part company with the noble Lord, Lord Islwyn. We are on a par on most social and political issues but on this issue, I must disagree with him.
I can only quote what Ms Julie Morgan said:
"In Wales, women have been more dramatically under-represented in public and political life than in any other part of Britain. Wales has the lowest percentage of female councillors, and until May, only four women had ever represented Welsh constituencies. The three new women Members elected in May bring the grand total to four out of 40 and were selected from women-only shortlists. Positive action was required to ensure that more women were elected to represent Wales ".—[Official Report, Commons, 2/3/98; col. 789]
That seems to me to be equally true of the position in relation to the national assembly. The noble and learned Lord the Solicitor-General emphasised that it is up to political parties to ensure greater equality.
I am pleased to tell Members of the Committee that the party of Wales Plaid Cymru, in the recent selection process for the European elections, introduced a method of selection whereby we as delegates were able to vote on a gender basis for a male person and for a female person. Then there was a run-off. I am pleased to say that Councillor Jill Evans was selected by a large majority to top the list to represent the party of Wales in the forthcoming European elections. It is to be hoped that, under the list system, she will be elected. Indeed, I would say that that is almost certain, knowing the quality of the candidate. That is the way that I believe all parties should respond in the forthcoming election to the national assembly.
However, I still take the view that we should be pursuing the opportunity to ensure that any action taken by political parties is within European directives and, indeed, within the more recent enabling provisions of the Treaty of Amsterdam, which will enable affirmative action to be taken in this area. I understand that I am not going to make much progress on the matter. But this has not been just for the sake of the record; it is a matter for the future. In that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Vacancies in Assembly constituency seats]:
[Amendments Nos. 33 and 34 not moved.]
Clause 8 agreed to.
Clause 9 [Vacancies in Assembly electoral region seats]:
[Amendment No. 35 not moved.]
The Deputy Chairman of Committees (Lord Dean of Harptree): I should point out to Members of the Committee that if Amendment No. 36 is agreed to, I cannot call Amendments Nos. 37 or 38.
9.15 p.m.
Lord Falconer of Thorotonmoved Amendment No. 36:
Page 6, leave out lines 8 to 11 and insert—

("(a) is included on that list,

(b) is willing to serve as an Assembly member for the Assembly electoral region, and

(c) is not a person to whom subsection (3A) applies.

(3A) This subsection applies to a person if—

(a) he is not a member of the party, and

(b) the party gives notice to the regional returning officer that his name is not to be notified to the presiding officer as the name of the person who is to fill the vacancy.").

The noble and learned Lord said: This government amendment deals with concerns expressed about the fairness of allowing people who had left a political party to remain on a party list put forward at an assembly election by that party. We believe that it would be an injustice and a disservice to the electorate if we were to allow a casual vacancy in a party list seat to be filled by someone who had been on the list at the time of the election but who had since left the party.
The electoral region ballot in the assembly elections will involve a choice between party lists or independent candidates. If they choose to vote for a party list, most voters will be voting for the party list as a whole rather than for any individual candidate on that list. The allocation of the electoral region seats in each electoral region is determined so as to compensate for any disproportionality in the seats won by the parties in the constituencies within that region.
It would be inconsistent with those circumstances if a vacancy in an electoral region seat won at the election by a party list were to pass to another allegiance because the next person on the original list was no longer a member.
The government amendment addresses that anomaly. It would introduce a new test for the regional returning officer to apply in respect of the next available person from the original party list. If the next person on the list were not a member of the party and the party itself were to inform the regional returning officer that the name of that person should not be notified to the assembly presiding officer to fill the vacancy, that person's name could not be put forward by the regional returning officer. That officer would be obliged to pass on to the next available person on the extant list and apply the same tests.
The government amendment differs from the amendment tabled by noble Lords from the party opposite in that it imposes a burden of proof of

917
non-membership rather than proof of membership. There may be circumstances in which a party may be content for someone who is not a member—perhaps, for example, he has forgotten to renew his subscription—to fill the vacancy. Our amendment would provide for that circumstance, whereas the other amendment would not. In those circumstances, I beg to move.
Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for that explanation. Perfectly clearly, we were on the same wavelength, at least to some degree, when we considered this particular issue. As the noble and learned Lord said, we are talking about a circumstance where a vacancy occurs and the next person on the list has in fact left his party. It seems to me that it would not be right for him to be elected on his former party's ticket. That is why I have tabled this amendment. However, I am happy to bow to the Government's amendment which is drafted slightly differently.
I believe that the Minister answered one of the two questions that concerned me as regards the Government's amendment; namely, if a person is no longer a member of a party, the party would inform the returning officer that the person is no longer a member and should not be considered. That seems to be sensible. We are at all fours on that. But if he is not a member of the party, I find it difficult to understand why the party would tell the regional returning officer to accept him. The Minister suggested that the person concerned may have forgotten to renew his party membership. I can see that that could happen, but I think it is pretty unlikely. If I were the next person on the list to be elected to the assembly or to the European Parliament, and I realised that if someone higher on the list "fell off his perch" I could be elected, I would make sure that I retained my membership of the party. I believe it would be a foolish man or woman in that position who would allow his party membership to lapse. However, I understand what the Minister said. My deeply suspicious mind made me wonder whether there was some other point behind that, but, as I say, I accept entirely what the Minister has said.
I take it that "and" does not mean "or". I find that lawyers have a habit of mixing "and" and "or", at least to my simple mind. In other words, as regards someone who is still a member of the party, the party may give notice to the regional returning officer that it did not want that person to be considered. This could be a case of the "control freaks" in a party apparatus wanting to make sure that anyone who deviated from the straight and narrow was immediately denied the possibility of being elected to the Welsh assembly in the event of people higher on the list dying or retiring. I hope that the Minister can assure me that "and" does not mean "or"; in other words, that someone who is next on the list will not be denied the chance to be elected because the party has decided that that person's face no longer fits, although he may still be a member of the party. I do not think that the Minister dealt with that point, and I should be grateful if he would assist me on it.
918
My next point may perhaps be more appropriate to a clause stand part debate, but it is related to the point that we are discussing. I hope I may discuss it now. I refer to the case of someone on the list who is elected but leaves the party during the course of his membership of the assembly. We have the first-past-the-post tradition in this country. People are elected for themselves. Therefore if they cross the Floor and join another party, while people shout that they should resign and a by-election should be held, we all accept in reality that they were elected for themselves and therefore they are quite entitled to retain their seat even if they have changed their party. It seems to me that the regional list concept alters that argument; indeed I believe it negates that argument. I had wondered whether to table an amendment to make provision for that. However, my ingenuity fell short of tabling an amendment that satisfied me as I also realised that if the party did not like the way someone voted it could drum that person out of the party and push him or her off the list. I considered that would be unfair and therefore I was confronted with a difficult dilemma.
I hope that the Minister can address the point of someone who is already elected who decides to leave his party. As I read the Bill, he would be able to stay in the assembly despite the fact that he was definitely flying under false colours as it were. With that small reservation about the list system, I welcome the amendment that the Minister has tabled. I am pleased that we have been able to clear up what may have constituted an anomaly at some stage in the future.
Lord Thomas of Gresford: We on these Benches also welcome the amendment that is proposed by the Government. Perhaps I may follow the noble Lord, Lord Mackay, on the subsidiary point about the person who crosses the Floor. We, in our party, have certainly not suffered in that respect over these last many years. Numerous people have joined us from other parties, both at council level, in another place and, indeed, in this Chamber. Nevertheless, it could give rise to problems if it should so happen that in the course of a session of the Welsh assembly a member elected on a regional list changes party. All I would ask the Government to do is to consider whether they require an amendment to the Bill to make it absolutely clear what the position is in those circumstances.
Lord Falconer of Thoroton: I think two points remain. First, does "and" mean "and" or "or"; and, secondly, what is the position in relation to somebody who, after election on a regional list, crosses the Floor and joins another party.
First, I assure the noble Lord and the Committee that "and" does, indeed, mean "and". That means that where a casual vacancy arises, if somebody remains a member of the political party on the list which he appeared and if he is next in line, he cannot be passed over by the fiat of his party because two conditions have to be satisfied; namely, non-membership of the party and his name not being put forward. It is a matter for the party which is seeking to rely on it to establish that he is no longer a member. That was the critical difference between our amendments.

919
The second point is the question of the crossing of the Floor after election. As the noble Lord, Lord Mackay of Ardbrecknish, rightly identified, the Bill, as presently drafted, including the amendment, does not seek to act in any way against elected members of the assembly who change their allegiances during the term of assembly—that is, after election. We have taken the view that there is a long tradition in British politics of tolerating Members who cross the Floor. I do not think it would be in the interests of anyone if we sought to expel an elected member simply for moving from one allegiance to another. The British political tradition is one which extols the virtues and advantages of the representative rather than the delegate and we would be loath to depart from that principle in respect of the assembly elections. So we have thought about it and taken the view that we should not deal with it in any way. Even if you cross the Floor, you retain the right to remain in the assembly until the next time there is an election. I hope that answers all the outstanding points in relation to this amendment.
On Question, amendment agreed to.
[Amendment Nos. 37 to 39 not moved.]
Clause 9 agreed to.
Clause 10 [Entitlement to vote]:
The Earl of Balfourmoved Amendment No. 40:
Page 6, line 29, at end insert (", on the day of the poll").
The noble Earl said: The amendment deals with the election of members. It is grouped with Amendment No. 41. I shall leave my noble friends, either the noble Lord, Lord Roberts or the noble Lord, Lord Mackay, to speak to it.
A person's position can change quite dramatically over a short period of time. The words I have put down,
"on the day of the poll",
are taken straight from the equivalent clause, Clause 10, in the Scottish Bill. With the usual canny cautiousness of Scottish parliamentary draftsmen, they have pinned it down to a specific date. It is in that respect that I hope my amendment finds some favour. I beg to move.
9.30 p.m.
Lord Roberts of Conwy: The Government have spared no effort in enhancing the status of the national assembly of Wales. Its status is clearly superior to any form of local government. We agree with that, and that the assembly should have some of the trappings of Parliament, as some of our later amendments suggest.
It comes as some surprise therefore to find that the register to be used to determine entitlement to vote is the local authority rather than the parliamentary register of electors. I cannot believe that the sole reason is to allow noble Lords to vote in assembly elections. In any case noble Lords are cared for in our amendment which seeks to substitute the parliamentary for the local government register.
Our main reason for seeking the change is that we do not believe that the assembly is a local government body. Nor should it be treated as such. We think that that is an important point. There are differences between the two registers. The local government franchise would
920
allow any EU citizen living in Wales to vote but would exclude Welsh people living abroad. The parliamentary franchise would exclude EU citizens but would include Irish and Commonwealth citizens. British subjects living overseas would also be allowed to vote. These are important matters. We are anxious to hear the Government's reply.
Lord Williams of Mostyn: I speak to Amendments Nos. 40 and 41, if I may. I am most grateful to the noble Earl, Lord Balfour, for his helpful suggestion. There will be examples of persons who would be eligible on one day but not on another, as the noble Earl said, because circumstances change.
I have had the opportunity to look at Clause 10(1) again. I think that the existing wording is a little vague and could be improved by making it more time specific. Accordingly, I welcome and support Amendment No. 40 put forward by the noble Earl. Alas, the noble and learned Lord, Lord Simon of Glaisdale, again is not here.
On Amendment No. 41, we think that we should hold the assembly elections on the basis of the local government elections. The referendum was held on that basis and we had many lengthy debates about that in this Chamber. The assembly is not downgraded by using the local government register. It is concerned with the governance of Wales. It is to affect all those resident in Wales. If we use the local government register, as we propose, that allows citizens of the European Union who are resident in Wales and registered in Wales to participate in a democratic process because it affects their lives as much as anyone else who lives in Wales. It has the benefit that Peers who are resident in Wales, and registered in Wales, would be entitled to vote. I am told that there are a little fewer than 40 such creatures still in captivity.
As regards the proposal of the noble Lord, Lord Roberts, I understand his sub-theme. However, I believe that the conclusion at which one arrives is wrong. The register on the parliamentary basis would exclude Peers—I have dealt with their position—and resident EU citizens but would grant the vote to overseas voters who by definition are neither registered nor resident in Wales. We think that that would be wrong.
Citizens of other EU countries who are resident in Wales and wish to be registered in Wales, if they so choose, contribute to diversity of life and prosperity in Wales. They have a stake in the future of our country, and I believe that it would be invidious to exclude them.
The assembly will have no responsibility for United Kingdom citizens from Wales (Welsh born or otherwise) who are resident overseas. We do not believe that there is any reason for an overseas voter to vote in an election for the assembly. The decisions of the assembly would be unlikely to have any impact on them.
One of the effects of the amendment would be to require a third register to be drawn up—solely for the purpose of allowing Peers to vote in assembly elections. Peers are well regarded, cherished, loved and revered in Wales. However, there are fewer than 40 of them, and I wonder whether the trouble of having a separate register

921
would be worthwhile. Therefore I take the point made by the noble Lord. We are not, of course, diminishing the status of the assembly; we are using the most practical form of register appropriate to the condition of the Welsh assembly. I therefore hope that with that explanation the noble Lord, Lord Roberts of Conwy, will feel able to withdraw his amendment.
The Earl of Balfour: I am grateful to the Minister. I commend Amendment No. 40.
On Question, amendment agreed to.
Lord Roberts of Conwyhad given notice of his intention to move Amendment No. 41:
Page 6, line 30, leave out from ("a") to end of line 34 and insert ("parliamentary election or who would be so entitled if they were not peers.").
The noble Lord said: I am grateful to the Minister for his comments. I am content not to move Amendment No. 41.
[Amendment No. 41 not moved.]
Clause 10, as amended, agreed to.
Clause 11 [Power to make provision about elections etc]:
Lord Mackay of Ardbrecknishmoved Amendment No. 42:
Page 7, line 8, leave out ("and registered political parties").
The noble Lord said: I congratulate my noble friend Lord Balfour on securing a small but significant victory against the Government. We shall report these matters, in order to show fairness to the noble Lord, Lord Williams of Mostyn, to the noble and learned Lord, Lord Simon of Glaisdale, in the morning. Perhaps I may even have the same luck with Amendment No. 42.
This amendment turns to the portion of the Bill which discusses the limitation on election expenses of candidates for election. We are all used to the limit of election expenses on each candidate for election to Westminster. It is quite straightforward. There is a limit, returns have to be made and everybody accepts and understands that—sometimes more so than at other times. Basically, it is an accepted part of the system that there is a limit to the amount of money that the individual candidate in a constituency can spend in order to get himself or herself elected. That does not bother me at all. However, I noted that in subsection (2)(c) the words, "and registered political parties", were added. This would be the first time that there was a limit of election expenses on registered political parties. I shall resist the temptation to ask how one defines "registered political parties" since I am imminently to find out. I shall therefore resist that temptation for the moment.
What puzzles me is that, at present, in elections to the other place, and indeed to local government, political parties are allowed to spend nationally—not in the pursuit of an individual candidate's return, but nationally—as much money as they can persuade their supporters to raise or give to them. That has been a traditional part of the way we run matters in this country.
922
Two matters are changing. First, the suggestion has been made in some quarters that we ought to change that system. As I understand it, the Neill Committee is looking into these matters, but has not yet reported. The fact that it has not yet reported is important.
Secondly, because we are moving to the additional member system here, the registered political parties could spend money in the pursuit of the election of the list in one of the European seats. Therefore it is perhaps not as simple as it is in the other place where the billboards and other paraphernalia of election campaigning are placed throughout the country. Sometimes, posters appear in the most unlikely places. I find it hard to understand why my party thought that billboards in the constituency in which I live, Glasgow Govan, would have much influence on that seat. I imagine that the same could be true for some Labour posters put up in safe Tory areas. The point is the availability of poster sites and that people commute past them. Those are arguments people would use to defend the good sense of putting up posters in constituencies where they do not seem to have much chance of bringing about the desired result.
Those and all the other paraphernalia and modern techniques that go on throughout the country cost money and are uncapped, to use a local government financial expression. They are not capped in any way, whereas the campaigns run for me when I was a candidate were tightly controlled by the limits.
In the Bill there is the suggestion that the total amount of money being spent by a political party—not a specific amount spent in the pursuit of individual candidatures—should be limited. I suggest that that is premature because the Neill Committee is to report on the issue and we ought to await its report.
Secondly, if we decide to go down that road, we ought to do so by primary legislation not secondary legislation. After all, it is secondary legislation that is involved here. While I understand the temptation to the Government to try to make things neat in the Welsh Bill, the phrase is, jumping the gun on Neill and also jumping the gun on legislation. Even if Neill recommends that such limits ought to be imposed on the other place, naturally I accept that if that happened, then those limits should quite legitimately be imposed on the Welsh assembly and the Scottish parliament. In those circumstances, that ought to be subject to primary legislation because it would be making a significant change to the way we have carried out our electioneering in this country. I hope that the Minister understands that I am not trying to be difficult, I am just questioning why the words are in the Bill long before we have come to any conclusion on the issue of general expenses of political parties in electioneering. I beg to move.
Lord Thomas of Gresford: I recall that in the Wynstay Arms in Ruabon many years ago there used to be on the wall a printed list of expenses incurred by Sir Watkyn Williams-Wynn to obtain the seat for one of the Denbigh boroughs. He had spent in that campaign in the early 19th century some £22,000, much of which went in direct payments to the voters to vote for him.

923
There was the ox roast, the beer and everything else. That is the traditional way in which British politics were carried out and I am surprised to hear the noble Lord, Lord Mackay, talk about the traditional way in which we do things now.
It is right that the Neill Committee has yet to report, but the grain of British politics is surely running against the untrammelled spending by political parties on elections. The amounts involved are so huge that they have led to overseas funding and not very successful attempts by millionaires to purchase political power. The time has surely come, whether or not the Neill Report has appeared, when limits should be set on the amount of money that can be spent without any check or hindrance by a political party on election campaigning.
9.45 p.m.
Lord Crickhowell: Perhaps I can follow that extraordinary intervention, which referred to what went on in the early 19th century when clearly my noble friend was talking about modern politics.
The point being made by the noble Lord, Lord Thomas, reinforces the case made by my noble friend, and it is a matter that should await Neill. If this is the trend, it should be done on a proper basis across politics as a whole and not slipped in on the back of a Welsh Bill. I felt that perhaps this was a probing amendment and we would hear the Government's answer—I hope to hear a convincing Government answer—hut in fact this is a subject to which we shall probably have to return.
Lord Williams of Mostyn: The noble Lord, Lord Thomas, seems to spend all his time on licensed premises! However, the true point here is that the introduction of the additional member system will bring in a new form of political campaigning. We will have the usual well-known constituency contests focusing on individual candidates in specific constituencies. Added to that will be the campaigning for the party lists.
We impose expense limits on individual constituency candidates and believe it is intellectually consistent and proper that we impose expense limits on the party list candidates in exactly the same way. That is not pre-judging the noble Lord, Lord Neill, whose remit is much wider and is cast in quite a different form. We are simply saying that if one has a coincident election with a voter having one vote for the individual constituency candidate and at the same time, at the same ballot, the same voter casts his or her second vote for the party list, it is only sensible and consistent to have some sort of limit available to be designated for the party list contest. There is nothing sinister about that; there is nothing revolutionary about it; it does not pre-judge Neill; it simply deals with the circumstances that we can envisage in a rather simple way.
I hope that on that basis the noble Lord, Lord Mackay of Ardbrecknish, will feel willing to withdraw his amendment. If any Member of your Lordships'
924
Committee has specific suggestions as to how the limit should be operated, speaking for myself I am more than willing to listen to any suggestions on a detailed basis.
Lord Mackay of Ardbrecknish: I am not entirely sure that the noble Lord, Lord Williams of Mostyn, properly answered the questions put, but perhaps I did not put them correctly. I shall therefore try to clarify what I believe I heard and we can see whether or not I am right. As my noble friend Lord Crickhowell said, we shall perhaps have to look at this in some detail between now and Report stage.
I cannot begin without saying to the noble Lord, Lord Thomas of Gresford, that I do not believe he could have been listening or understanding. I should have thought that the traditional form is the one we have right now, to which I link myself—I did not stand in the early 19th century—and it is one where the limit on the candidates is rigorously enforced. It is not a high limit, though it may recently have increased to a more realistic rate. For some time it was a low limit, given the way expenses were rising and campaigning was changing.
I was not defending the situation in the last century and it does not do debate any good to so misunderstand the motives of the person arguing the case that I have to stand here and make it perfectly clear that in no way was I defending a situation where votes were bought. I have no doubt that the noble Lord's own party, in its day, played a not insignificant part in that enterprise.
I was talking about current-day politics, and the tradition as long as I have been around politics—that is now quite a long time—is that there is a limit on each individual candidate. I was not asking for that to be changed in any way. It is a limit which is looked at carefully. Two or three Members in the other place are currently having their electoral expenses looked into, which underlines the fact that it is a limit observed by political parties and they all look at each other's election expenses in some detail.
I understand the Minister saying to me that in the party list contest for four additional members there is surely a perfectly good case for arguing that there ought to be election expenses of some kind so that in whatever European seat it may be there is some limit on the amount of money the party can use to compete for the election of those four additional members. I understand that. However, over and above that, the party in the whole of Wales could be undertaking simple campaigning on behalf of the Labour Party, the Conservative Party, the Liberal Democrat Party or Plaid Cymru—they could be using the usual poster sites and so on—which was not specific to either individual candidates or to the additional member systems. So far as I read this, the words that I have asked to be removed would include that all-Wales campaigning as well as campaigning in the individual additional member seats. I can see that it might be a quite difficult issue to tease the two lots apart but I think it is important to know exactly what the words here mean so that people know what issues secondary legislation might address.
I have no trouble with the individual candidates at all. I think one can have an argument about the four candidates in additional member seats and advocating

925
their election, saying, "Our number one on the list, Joe Bloggs, is a thoroughly excellent fellow, as is number two, Jean Bloggs, and as are numbers three and four." You name them and say that those are the people you will be voting for if you vote for the party on the second vote. I can understand the argument that there ought to be some limit on that but it is the next step, the limit on the total vote, that bothers me, especially as we are looking at it—the noble Lord, Lord Thomas of Gresford, admitted this—in the Neill Committee. If we are to do something about that issue, we should deal with it separately, after Neill, and by primary legislation and not secondary legislation.
I wonder whether the Minister can help me so that when we consider these matters later we will be in a better position to know whether we have any cause for concern. Is my distinction an accurate one, or is the Minister saying that all expenditure by the party, whether it is specifically directed at additional member seats or over the whole of Wales, will be caught up under subsection (2)(c)?.
Lord Thomas of Gresford: I fully understand the noble Lord's argument and I follow the points he was seeking to make. My point is that it is a mistake to rely too much on tradition. Just as the situation in Victorian England in relation to individual candidates moved on so that limits on expenses were introduced in respect of individual candidates, so today we are moving to a position—the grain is moving in this direction—whereby there should be limits on political parties and on their overall expenditure on elections. It is not right that votes should be bought by the largest purse. That leads to the kind of matters to which I referred earlier.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for his intervention. The difficulty there—I did not intend to introduce this—is how one defines money spent in pursuit of a political party. Is it just what that party itself spends, or is it what some of its friends may spend in order to bolster its election? One can think of various ways in which that could be done. Frankly, I think this is a difficult area to deal with and it will be extraordinarily difficult to police.
Lord Williams of Mostyn: I took and understood the remarks of the noble Lord, Lord Thomas, in the way that he indicated. In fact, in the same election it was better in Carmarthen because all the voters took the £22,000 bribe and then did not vote for the person who had bribed them. So not only did he spend the money but he did not have the seat either.
Of course, there are difficulties here, but they are no different in kind, quality and difficulty from the question one has at the moment between party expenditure, properly so-called, and individual candidate expenditure, properly so described. What we are saying is perfectly straightforward and I do not believe that I have heard an intellectually sustainable argument to the contrary. We are going to have coincident elections. There will be two votes for each voter. He or she will be voting for a candidate who will be expense-limited,
926
and rightly so, as I believe everyone agrees, and also for a party list. We are simply saying that there should be power for the Secretary of State to limit the party list political expenditure in exactly the same way—although not necessarily with exactly the same detail because that is a matter for the future—as one limits the expenditure of individual candidates. I do not see any difficulty with that; quite the reverse. I see much to commend it. Of course we shall attend to what the Neill Committee says, but that does not attend to the principle for which I contend here.
Lord Crickhowell: The Minister has used the words put forward by my noble friend. He said that he was inclined to limit the expenditure on party lists. I do not have any great difficulty with that. My complaint about the intervention of the noble Lord, Lord Thomas of Gresford, is that I thought he was trying to take us much further and into a much wider area of debate that ought to be covered by primary legislation.
There are grave difficulties here. Those of us who have fought elections know just how tight the controls are and how difficult they are to administer and interpret. What worries us is that by using the words "political parties" rather than a more confined wording, the Minister is underestimating the practical difficulties. My noble friend commented that recently there had been a number of challenges. We do not want to create a number of post-election challenges simply because the matter has been ill thought out and badly defined.
This is a case where the Minister would be wise to take away the arguments that have been advanced and to consider whether it is possible to have more precision in the drafting of the legislation so that we can have confidence about the order. That is all we are asking for at the present time. Real difficulties have been enunciated by my noble friend about the use of "political parties" without further clarification. On the experience of fighting elections and watching the controls in operation, I believe that the Minister would be sensible to take away the arguments and to consider them rather more carefully than he appears to have done.
Lord Williams of Mostyn: Before that codicil I was about to say that I would do exactly what the noble Lord, Lord Crickhowell, has asked me to do. I have not failed to consider the arguments. In fact, I thought I made it plain that I recognised that there are difficulties. On the basis that fundamentally I believe there is no disagreement in principle, then I am more than happy to do as I undertook to do at Second Reading and as regards the first amendment today; namely, to think with some care about what noble Lords have said today. I said that if there were specific proposals about the way in which we deal with this matter—I believe that it was in regard to this amendment that I said it—I am more than happy to have detailed suggestions to which we shall give every proper consideration.
I do not say that the propositions put forward by the noble Lords, Lord Mackay and Lord Crickhowell, should be dismissed out of hand simply because of their

927
paternity. There are questions here that we need to tease out. But fundamentally I do not believe that we are at odds.
Lord Mackay of Ardbrecknish: With that assurance I am certainly a little happier. I shall study the Minister's words quite carefully. But I believe that there is a distinction, which my noble friend has underlined, between the political parties operating on a list campaign and political parties operating on a general campaign. That is the point which concerns me about the wording. We can return to this if we are still concerned when we read Hansard tomorrow. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
10 p.m.
Clause 12 [Disqualification from being Assembly member]:
The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 43 is agreed to, I cannot call Amendment No. 44.
Lord Roberts of Conwymoved Amendment No. 43:
Page 8, leave out lines 1 to 3.
The noble Lord said: Clause 12 is a disconcerting clause, in that it gives extensive powers to disqualify people from being members of the assembly. A government amendment has been tabled to amplify further those powers in what appears to be a wholly unacceptable way.
I deal first with the clause as it stands. There are three amendments to it which, if carried, would mean that the provisions disqualifying persons from sitting in the assembly would be the same as those disqualifying people from sitting in Parliament. That is at least our intention. Amendment No. 43 expresses our concern about disqualifying by order. That concern is hardly allayed by the Government's amendment which we have yet to reach. The second amendment, Amendment No. 45, removes the provision for disqualifying persons who, under the Audit Commission Act 1998, are prevented from being members of a local authority. I have already said that the assembly is not a local authority. In our opinion, it should not be treated as such. The third amendment, Amendment No. 48, is consequential, and achieves our purpose of limiting disqualification under the provisions of the House of Commons Disqualification Act 1975 to the Auditor General for Wales and the office holders specified in subsection (4). I shall not comment on the Government's amendment or the amendment in the name of my noble friend until they have been moved.
Lord Crickhowell: I hesitated because I was not sure whether the Minister would speak to his amendment at this stage. I propose to speak to Amendment No. 46 which stands in my name. When I spoke at Second Reading and raised the possibility that the Secretary of State for Wales might wish to be both Secretary of State for Wales and leader of the administration of the
928
assembly, I did so in a lighthearted manner. I had seen a press report to that effect and thought that it was worth registering that matter to see whether I could obtain a clear answer. I hardly credited that it was a serious proposition.
At Second Reading, referring to Mr. Ron Davies, I said:
"He apparently thinks that if the post [of Secretary of State] survives for a short time he might also succeed in remaining Secretary of State for Wales and a member of the UK Cabinet. That proposition is untenable. It would involve conflicts of interest of the gravest kind. You cannot be a member of two separate cabinets, each with collective responsibility and separate interests, without such conflict being an unavoidable fact. I believe that we should remove the temptation from Mr. Davies and introduce a clause making such a dual role impossible".—[Official Report, 21/4/98; col. 1060.]
I thought the Minister would say that those reports should not be taken seriously. I was astounded when the Solicitor-General in his response (at col. 1134) gave a quite different reply:
"The Bill does not prevent one person being both assembly first secretary and Secretary of State for Wales. Whether one person would fill both posts is a matter for the political parties in selecting candidates, for the electorate at the ballot box, for the assembly in choosing who is to lead it and for the Prime Minister of the day. The Secretary of State will be chosen by the Prime Minister and will he hound by Cabinet collective responsibility while the first secretary will depend on the confidence of the assembly. Therefore, there will be a role for the Secretary of State in Cabinet in the UK Government. The Secretary of State can also be the first secretary, subject to the views of the assembly and the Prime Minister".
I find that a very remarkable proposition.
I repeat that I find it very hard to see how you can accept collective responsibility for one administration and have a rival collective responsibility for another administration in another elected assembly. Conflicts of interest are bound to arise, and arise very frequently. I think that this Committee should certainly make it impossible for it to happen. I may he told that of course it is possible under the order-making powers to remove the possibility in individual cases if the occasion should arise. I do not think this is an acceptable way out of the dilemma.
If it really is the proposition, then we have been debating the whole of this Bill almost under false pretences. I know I shall be told that the term "Secretary of State" in legislation covers any Minister, and if one Minister cannot perform the duties another Secretary of State can do so. Nonetheless there is a whole string of references to which we are entitled to refer to the Secretary of State for Wales. While there may be occasions when it is quite clear that another Minister has to step in, it really will be a great surprise for us if time and time again, as a consequence of clause after clause, we find the Secretary of State for Wales coming into obvious conflict and unable to perform duties which then have to be performed by someone else.
I do not propose at this late hour to go through the whole Bill and look at all the potential conflicts which may arise simply from the clauses in the Bill, let alone the situations which inevitably arise in government when great and controversial issues are debated. We will come later to talk about the role of the assembly in Europe and how we deal with agricultural matters and

929
so on. We had an interesting example on the Floor of the House about a week ago, I think. We talked about the difficulties that might arise between the negotiating position of the Government on European regional policy and perhaps the position taken by the assembly. We will come back to that on later amendments.
Listening to debate on the Bill earlier today, one can identify a whole string of amendments. We were told this evening that the Secretary of State will review the electoral system after 1997. I am not sure that we realised at the time that the person who would be reviewing the system might be the leader of the assembly himself. In Clause 22 the Secretary of State will lay the order for the transfer of functions. In Clause 32 the Secretary of State shall undertake that the assembly will undertake such consultations about its legislative programme for the session as may be required. It is a very interesting concept that the Secretary of State should apparently consult with himself about the legislative programme. Clause 82 says that the Secretary of State from time to time will make payments to the assembly of money provided by Parliament in such amounts as he may determine. It is slightly unexpected to discover that a Secretary of State sitting in a British Cabinet is going to hand over sums of money to an assembly of which he is the head. And so we can go on. He can make loans under Clause 84 and he has to prepare accounts in relation to those loans under Clause 85.
I have to say that if this was a company prospectus or a set of company accounts, the rules laid down by the Stock Exchange and by bodies like Cadbury one would immediately say that this was quite out of order in proper government terms. I do not believe that this Committee should take lightly the possibility of such a situation being permitted.
I am told by those who always seem to be better informed about these things that the Government will resist this amendment. If they do so then I really think I shall have to consider how the matter is to be further considered at a rather more suitable time than eight minutes past 10 in the evening by a light House. In my view, the issue is of significant constitutional importance and is one upon which this House should take a view after proper consideration. I touch on the issue tonight with the indication that if I do not receive a satisfactory assurance, I shall return to it on another occasion.
Lord Elis-Thomas: I am constantly surprised and enthralled by the views of the noble Lord, Lord Crickhowell. As a distinguished former Secretary of State, he seems to be arguing that the position, hypothetically, in which a Secretary of State might also be the first secretary of the assembly is somehow different from the position he distinguishedly occupied for eight years. Surely, all the arguments that he has adduced about the position of Secretary of State in Cabinet in relation to the Treasury, and the Secretary of State acting as first secretary administering funding in Cardiff, applied to him when he was in that position.
930
The noble Lord's amendment seeks to prevent any Minister of the Crown being a member of the assembly. I do not know on which continent the former Secretary of State lives, but if he will glance over at mainland Europe he will find many Secretaries and Ministers who are members for a transitional or longer period at the level of local government, municipal level, local mayoral level, regional assembly level, the European Parliament and member states. That brings a coherence to government between the different levels and ensures that politicians who develop a skill at one level can make it available at another.
In the emerging federation of the peoples and nations of these islands in the United Kingdom, surely we will look for a way in which politicians will be able to serve at different levels and sometimes simultaneously. If that is possible, the potential talents at different levels will develop and make those switches.
There is another equally important point. We will later deal with European and UK issues as set out in Amendment No. 204, which we will not consider tonight. That amendment proposes that Members of this House and the European Parliament should be able to participate in the assembly or its committees but not vote. In other words, I argue that people other than the Secretary of State should be members of the assembly and may hold office, depending on the circumstances of the day. Other Members of this House, another place and the European Parliament might be able directly to contribute to the debates of the assembly and to scrutinise work—for example, in the European committee which many of us would like to see established—or in the administration. To prevent that happening, as the noble Lord seeks to do, is to separate in a graphic way the levels of administration in government and governance within this kingdom. Indeed, perhaps I may be so bold as to suggest at this time of night that the noble Lord, Lord Crickhowell, is becoming a separatist.
10.15 p.m.
Lord Williams of Mostyn: Perhaps I might indicate the amendments with which we are dealing in this group. Amendment No. 43 stands in the name of the noble Lord, Lord Roberts of Conwy. Amendment No. 44 is in my name. Amendment No. 45 is in the name of the noble Lord, Lord Roberts of Conwy. Amendment No. 46 is in the name of the noble Lord, Lord Crickhowell. Amendment No. 47 is in my name and Amendment No. 48 is in the name of the noble Lord, Lord Roberts of Conwy. Obviously they are grouped together because they inter-relate.
The amendment tabled by the noble Lord, Lord Crickhowell, would disqualify from membership of the assembly any serving Minister of the Crown. I recall a concern which he raised on Second Reading and reiterated tonight about a person simultaneously being a member of the United Kingdom Cabinet and the executive committee of the assembly. His present amendment goes significantly further than that and, as the noble Lord, Lord Elis-Thomas, indicated,

931
disqualifies any Minister of the Crown from membership of the assembly as a whole rather than the executive committee.
As the noble Lord, Lord Crickhowell, developed his arguments, my mind turned to the experience of continental Europe which was fully set out and amplified by the noble Lord, Lord Elis-Thomas. I shall not repeat or return to it.
We believe that it may be very useful for the assembly, particularly, perhaps, in the first five years or so, to have among its members people who have good experience in other political institutions such as this House, another place, the European Parliament and local councils. After all, the assembly's work will be to work closely and positively with all those other bodies. People who are members of both bodies may be very useful in establishing and cementing those relations, for the benefit of all sides, not simply from the Welsh assembly but also for the bodies from which members may well come.
I remind the Committee that the Bill allows the Secretary of State to make provision to abate the salaries of assembly members so that there would be no necessary question of members being able to draw two full salaries for public service. I really cannot see the virtue of excluding members of other bodies from being members of the assembly because we hope that that assembly will attract people who wish to serve it and therefore Wales as a whole; secondly, people with appropriate experience; and, thirdly, people who are not simply doing it for enhanced salaries.
The noble Lord said that he thought that simultaneous membership of the Cabinet and the executive committee is almost conceptually impossible. It seems to me that essentially it is a matter for the Prime Minister of the day to decide who should be a member of his Cabinet. I do not see the conflict in quite such a harsh, irreconcilable way as does the noble Lord, Lord Crickhowell. I understand the nature of his concern and I understand quite clearly that he proposes to return to this matter in due course.
Amendments Nos. 44 and 47 are drafting and technical amendments. The first maintains a consistency in terminology throughout the Bill. The second is necessary to tighten up any possible loopholes arising in circumstances where there are people undertaking the work of a post designated in the Order in Council but where there is no formal post title.
Amendments Nos. 43, 45 and 48 would firstly remove the power, to be exercised by Order in Council, to disqualify from membership of the assembly the holders of certain designated offices; and, secondly, remove the provision which disqualifies from membership of the assembly persons who have been disqualified from being a member of a local authority under Section 17(2)(b) or 18(7) of the Audit Commission Act 1998; that is—and this is important—members of local authorities who are responsible for incurring or authorising unlawful expenditure or whose wilful misconduct has caused a loss or deficiency.
932
We believe that there should be that exclusionary power. Persons are excluded, by similar provision, from the House of Commons. The purpose of the Order in Council power is precisely that exclusion.
The Order in Council power will be exercised by Her Majesty on the recommendation of the Secretary of State. Subsection (5) specifies that no recommendation may normally be made unless a draft SI containing the order has been placed before, and been approved by resolution of, both Houses of Parliament. Both Houses of Parliament will, therefore, be able to consider the order proposed under subsection (1)(b) and express any concerns at that point. The only Orders in Council which will not be subject to that procedure will be those where the Order in Council varies or revokes an existing Order in Council and the assembly itself has resolved to ask the Secretary of State to recommend the making of the new order.
The provisions relating to disqualification are perfectly sensible and proper. I am sure that the Committee would agree that people should not be allowed to stand for election and to sit in assembly places if those very same people have been deemed unfit—and after all, that is not lightly done—to be members of a local authority.
I realise that the amendments interlock and that is why I have dealt with them together in that way. I recognise the force of the concerns and I answer them generally in this way. These are new arrangements for a new assembly. We cannot be governed endlessly by the dictates of the past or the requirements of historical experience. As the noble Lord, Lord Elis-Thomas, said, this is a new world and we are looking for new arrangements. That is precisely why we have a devolution Bill.
Lord Roberts of Conwy: Perhaps I may begin by making a brief comment on the government amendment, Amendment No. 47, which amplifies the power to designate by order the offices whose holders are disqualified by allowing designation of an office,
"by reference to any characteristic of a person holding it".
Do we really mean "any characteristic"? Indeed, the mind boggles. Then there is that subtle extension of the definition of office to include, "any post or employment". I know that we are moving into a new world with the assembly, but need we really have such an extensive order-making power? It seems to be far too widely drawn for us to feel comfortable with it.
However, I should like to concentrate my remarks on the amendment tabled in the name of my noble friend Lord Crickhowell. He is absolutely right to seek to debar Ministers of the Crown from membership of the assembly, for the all- powerful reasons that he outlined. My noble friend raised the matter on Second Reading and forewarned the Government of his intention to bring forward a prohibitive amendment.
The situation arises because the Secretary of State, Mr. Ron Davies, has already indicated that he is to throw his hat into the ring and seek membership of the assembly, as indeed the Secretary of State for Scotland, Mr. Donald Dewar, has said that he will seek

933
membership of the Scottish parliament. However, what is not at all clear to us is whether they will cease to be MPs and, therefore, members of the UK Government. We are grateful to the noble and learned Lord the Solicitor-General for his speech at the end of the Second Reading debate in which he said:
"The Secretary of State can also be the first secretary, subject to the views of the assembly and the Prime Minister".—[Official Report, 21/4/98; col. 1134.]
There are various strands here to be separated. First, there is the fact that it is open to MPs to seek membership of the assembly. There is nothing unusual in a dual mandate of that kind. Some of us recall members of a Northern Irish Parliament at Stormont also holding seats at Westminster, and Westminster parliamentarians also sitting in the European Parliament. Indeed, there are arguments in favour and against such dual mandates. It can be argued that dual membership does help maintain cohesion between representative bodies, as the noble Lord, Lord Elis-Thomas, suggested, but there are problems with it.
The second strand is that if MPs are allowed to hold seats in the assembly, it is possible that they could become Ministers in the UK Government and/or members of the assembly executive. There are all kinds of possible permutations and combinations, but the one that has clearly gained prominence in recent weeks is the possibility of the Secretary of State for Wales holding, additionally, the post of first secretary to the assembly. The first position, that of Secretary of State for Wales, depends on the Prime Minister and the second on the assembly, together with the approval of the majority party within it. We all realise that there is a superficial attraction in the notion that the Secretary of State could hold both offices for a transitional period and that that would somehow ensure a smooth start for the assembly.
However, of one thing we can be certain: if the Secretary of State and the first secretary do not understand each other's roles and work together in reasonable harmony, there will be serious difficulties. It is this possibility that has nurtured the idea of combining the two posts, at least for a time. The internal disagreements and personality clashes within the Labour Party in Wales have not helped to inspire confidence.
As my noble friend emphasised, the combination of the two offices is constitutionally unsound. As a member of the United Kingdom Government, let alone the Cabinet, the Secretary of State will share in their collective responsibility to this Parliament. As first secretary of the assembly executive he will share in that executive's collective responsibility to the assembly. Therefore a conflict of interests and loyalties could easily arise. The joint holder of these offices could find himself subject to opposing decisions and resolutions endorsed by Parliament and the assembly, as regards resources, for example, as my noble friend Lord Crickhowell indicated.
Under this Bill the Secretary of State has a number of specific responsibilities in relation to the assembly and he is responsible to Parliament for their discharge. They are quite separate and distinct from the
934
responsibilities of the first secretary and the executive. Those responsibilities in toto do not lie well together. Their combination in one person would make a nonsense of devolution. I am astonished that the noble Lord, Lord Elis-Thomas, suggested otherwise because we would have not devolution but a substitute for the governor-general that we heard so much about in the old days, with a tremendous accretion of powers within himself.
Finally, I must point out that there is the strongest presumption in this clause against office holders becoming members of the assembly. That is what the clause is all about. Of course the Secretary of State is himself an office holder under the Crown. I strongly support my noble friend's amendment. I am sure that we shall return to it in due course.
Lord Thomas of Gresford: I see nothing constitutionally difficult about the proposal that the Secretary of State for Wales and the first secretary should be the same person. If the same political party is in power both in Westminster and in Cardiff, it would seem to make complete sense that he should be in a position to convey to his executive in Cardiff the policy of the Westminster government, and at the same time he should be able to convey to the Cabinet the policy of the Cardiff government. There seems to me to be no difficulty or inconsistency in that. If, of course, there are different parties involved, different considerations would have to apply. But whatever arrangement there may be, I would hope that in a reformed second Chamber the first secretary of the Welsh assembly would, for the period of his office, play his role within the second Chamber and thereby have a communicative role to this Chamber as to the policies of the government which he represented.
Lord Roberts of Conwy: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostynmoved Amendment No. 44:
Page 8, line 2, leave out ("members of the Assembly") and insert ("Assembly members").
On Question, amendment agreed to.
[Amendment No. 45 not moved.]
Lord Crickhowellhad given notice of his intention to move Amendment No. 46:
Page 8, line 9, at end insert (", or
(e) he is a Minister of the Crown in the Government of the United Kingdom.").
The noble Lord said: Earlier this evening I believe the noble Lord, Lord Elis-Thomas, said that Mr. Ron Davies was now known as "Ron the Assembly". I rather fear that if this amendment is not passed, there is a danger that he will be known as "Ron Double Bed". The trouble with people who share beds is that they sometimes find that the loyalty to wife and mistress causes grave difficulties and is likely to create conflict.

935
It is interesting that the noble Lord speaking for the Liberal Benches has talked over the past few weeks about this wider collective view of the assembly. It has been said that it will be all embracing and will take a Welsh collective view which embraces all the parties which will play a part. However, now it appears that the same political party will exert power at each end. Even with the same political party exerting power at each end, the head of an assembly in Cardiff will frequently find himself in an intolerable position of conflict if he is also a member of a British Cabinet. I note that the Minister understands full well my determination to return to this issue on a later occasion when we can debate the matter adequately and in full. On that basis, I shall not proceed with the amendment.
[Amendment No. 46 not moved]
Lord Williams of Mostynmoved Amendment No. 47:
Page 8, line 23, at end insert—
("() An Order in Council under paragraph (b) of subsection (1) may designate particular offices or offices of any description and may designate an office by reference to any characteristic of a person holding it; and in that paragraph and this subsection "office" includes any post or employment.").
On Question, amendment agreed to.
[Amendment No. 48 not moved.]
Clause 12, as amended, agreed to.
Clause 13 agreed to.
Clause 14 [Effect of disqualification]:
Lord Williams of Mostynmoved Amendment No. 49:
Page 9, line 19, at end insert—
("() Subsection (2) also has effect subject to section 141 of the Mental Health Act 1983 (mental illness) and section 427 of the Insolvency Act 1986 (bankruptcy etc.); and where, in consequence of either of those sections, the seat of a disqualified Assembly member is not vacant he shall not cease to be an Assembly member until his seat becomes vacant but—

(a) he shall not participate in any proceedings of the Assembly (including proceedings of a committee of the Assembly or of a sub-committee of such a committee), and

(b) any of his other rights and privileges as an Assembly member may be withdrawn by the Assembly.").

The noble Lord said: In moving Amendment No. 49, I speak also to Amendment No. 253.
I am sure Members of the Committee will find these amendments entirely non-controversial. They extend to the assembly provisions similar to those which apply in another place in respect of the treatment of Members who are suffering from mental illness or have been declared bankrupt.
936
Mental illness is a ground for disqualification from membership of the House of Commons at common law and therefore under Clause 12(2) of the Bill becomes a ground for disqualification from the assembly. Section 427(1) of the Insolvency Act 1986 provides that where a court has adjudged an individual to be bankrupt that individual is disqualified from membership of the House of Commons and thus by extension under Clause 12(2) of the assembly.
The effect of Clause 14(2) as it stands is that on being disqualified from membership of the assembly in either of these circumstances, a member's seat would become vacant. This is not what happens in the House of Commons because Section 141 of the Mental Health Act 1983, taken with Section 427 of the Insolvency Act 1986, allow, in effect, for a six-month period of grace before the seat becomes vacant. If the circumstances of the disqualified Member are restored before the end of that period membership is restored, but if circumstances remain the same after six months his seat becomes vacant.
These amendments amend the Mental Health Act and the Insolvency Act to extend to members of the assembly similar six-month periods of grace.
The amendment to Clause 14 makes clear that during the period of his disqualification while his seat is not vacant, the disqualified member may not participate in any proceedings. The assembly would have discretion to withdraw other rights and privileges as appropriate.
We do not think that it is appropriate to treat members of the assembly differently from Members of the House of Commons in these respects. That is the basis upon which I urge Members of the Committee to accept these amendments.
Lord Roberts of Conwy: We have the utmost sympathy with members of the assembly who may become mentally ill or insolvent and agree that they should be treated like Members of the House of Commons in the same circumstances.
Lord Williams of Mostyn: I am most grateful. I beg to move.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clauses 15 to 20 agreed to.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-six minutes before eleven o'clock.