Government of Wales Bill

HL Deb 11 May 1998 vol 589 cc905-36

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-Thomas

moved 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 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 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 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 Mostyn

moved 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 Mostyn

moved 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-Thomas

moved 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—

1. (a) selecting female candidates only, or male candidates only, for election to the National Assembly for Wales ("the Assembly"), or
2. (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 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 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 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 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.

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 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 Thoroton

moved Amendment No. 36: Page 6, leave out lines 8 to 11 and insert—

1. ("(a) is included on that list,
2. (b) is willing to serve as an Assembly member for the Assembly electoral region, and
3. (c) is not a person to whom subsection (3A) applies.

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

1. (a) he is not a member of the party, and
2. (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 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.

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.

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 Balfour

moved 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 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 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 Conwy

had 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 Ardbrecknish

moved 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.

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. 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' 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 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, 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 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 Conwy

moved 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 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 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.

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, 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.

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 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 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 Mostyn

moved 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 Crickhowell

had 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.

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 Mostyn

moved 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 Mostyn

moved 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—

1. (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
2. (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.

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.