National Assembly for Wales (Disqualification) Order 1999 (Hansard, 3 March 1999)

§ Lord McIntosh
of Haringey rose to move, That the draft order laid before the House on 10th February be approved [9th Report from the Joint Committee].
The noble Lord said: My Lords, the Government of Wales Act set the framework for devolution to the National Assembly for Wales, but it left some major tasks to be dealt with in subsequent secondary legislation. Before us tonight are three orders which, taken together—although they are not being taken together—fill in much of the remaining picture. The elections order sets out comprehensively the regulatory framework needed to conduct the Assembly's first election under the additional member system; the disqualification order clarifies who is and who is not eligible to stand in that election; and the transfer of functions order prescribes the comprehensive list of powers and duties which are to be handed over from the Secretary of State and vested in the Assembly.
The purpose of the draft disqualification order is to set out clearly those offices and employments which are incompatible with membership of the Assembly. The 1765 order has been considered and approved by the other place. There are well-established rules on disqualification relating to membership of the House of Commons, the European Parliament and local authorities. Comparable rules need to apply to the Assembly. This is dealt with under Section 12 of the Government of Wales Act 1998, which specifies a number of persons and classes of person who will be disqualified from membership of the Assembly. In addition, Section 12 enables the Secretary of State to recommend in an Order in Council further offices and employments, the holders of which would also be disqualified from becoming Members of the Assembly. The draft of such an order is now before the House. Subject to the assent of this House, the order will be put to Her Majesty in Council.
In preparing the order the Secretary of State has had to recognise that there are no direct parallels in the national Assembly within the United Kingdom. He has decided that it would not be appropriate to put in place for the Assembly disqualification provisions that mirror those which apply under the House of Commons Disqualification Act 1975. The Assembly will not be a comparable body to the House of Commons. The listing under the 1975 Act is an extensive one, running to several hundred bodies and post-holders. That listing would not fit the circumstances of the Assembly.
The draft order before your Lordships takes account of responses to a consultative exercise which invited views on the range of disqualification and the need to avoid conflicts of interest and to preserve the impartiality of these bodies. In addition, disqualification is to extend to the broadcast interests, given the role which they would have in reporting on the Assembly. In identifying the offices and employments subject to disqualification, the Secretary of State has decided that it would not be appropriate to apply disqualification to all employees of the listed bodies. Therefore, the order proposes only a limited application to employees, mainly civil servants.
Part I of the order lists 28 bodies where all members are disqualified from membership of the Assembly. Part II identifies a further 43 bodies and offices, the members of which (or post-holders) are not able also to be members of the assembly. In Part II the distinction proposed is for those employees who by virtue of their employment are ex officio members of the board.
Many of the Welsh public sector bodies listed in Part I and Part II will have a direct link with the Assembly and the funding dependency will be a clear one. There are then bodies which operate in a quasi-judicial manner.
Impartiality is the reason for disqualifying members of the Audit Commission, the Commission for Local Administration in Wales, the Health Service Commissioner for Wales and the Commissioner or Assistant Commissioner of the Boundary Commission for Wales.
I should also outline why it is necessary to extend disqualification to the listed social security bodies. Although the Assembly will not exercise functions in the field of social security, these bodies have a duty to decide appeals in Wales on matters which can directly or indirectly affect the Assembly's activities or expenditure; 1766 or, indeed, affect Assembly Members directly. For example, the bodies could be dealing with child support maintenance appeals or decisions which influence the respective responsibilities of local authority social services departments and the Department of Social Security.
The Social Security Commissioner and the Child Support Commissioner, who are analogous to High Court judges, are disqualified by the provisions of Section 12 of the Government of Wales Act, which apply to the House of Commons Disqualification Act. Therefore, it would be consistent to ensure that disqualification from Assembly membership was extended to the social security appeal and tribunal structures, which are responsible for precedent-setting decisions or have a deciding influence over the way that a particular tribunal carries out its business. Similar considerations apply to the pensions bodies listed in the order where we wish to avoid actual or potential conflicts of interest and compromising impartially.
Outside of the draft order the Secretary of State will rely on his contractual relationship with the Training and Enterprise Councils and the career service companies in Wales to disqualify their board members. For the Welsh European programme executive he will enter into an agreement with the company to preclude Assembly Members from serving on its board. Under the Assembly elections procedure order which I have already described to your Lordships, those in a disqualifying office or employment who intend to stand as a candidate for election to the Assembly would be required to resign before making their formal consent to nomination. The final date for the formal submission of nomination papers will be 8th April. That would mean that people holding a disqualifying office would need to resign by that date at the latest. Where a person resigns their membership to stand for election to the Assembly and is unsuccessful in that election, there is discretion to decide whether to reinstate that person to the body concerned. For an employee, reinstatement would depend on the terms and conditions of employment that apply. I beg to move.
Moved, That the draft order laid before the House on 10th February be approved [9th Report from the Joint Committee].—(Lord McIntosh of Haringey.)

Earl Attlee
My Lords, I am grateful to the Minister for his explanation of this order. Unfortunately, my noble friend Lord Roberts of Conwy is unable to be here tonight and we shall not have the benefit of his knowledge and experience in these matters. However, we have the noble Lord, Lord Thomas of Gresford, and I am sure that he will be extremely helpful to the House.
Bearing in mind the important matters to which these orders relate, the attendance in the Chamber tonight is disappointing to say the least. My noble friend Lord Mackay of Ardbrecknish spoke earlier to the Scottish orders. He identified that many of the organisations listed in the Scottish schedule did not exist or that there were inappropriate exclusions. It is also interesting to note that with the bicameral system that will still apply in England, this House will still have the benefit of Members who are involved in many of the organisations mentioned in both of the schedules. It is of course a two-way process as the 1767 organisations benefit from the input into Parliament as well. However, I accept the reasons given by the Minister for these disqualifications.
The list in the Welsh order before us tonight is much shorter for the reasons given by the Minister. With my limited knowledge I can see no difficulties here but no doubt the noble Lord, Lord Thomas of Gresford, will have some interesting observations to make. I look forward to hearing them.

§ Lord Thomas of Gresford
My Lords, I cannot wait to hear myself after that introduction! I have only the same point to make that I made in relation to the Scottish legislation. I see no reason why people should be required to resign their positions until they are elected. In the past it has been difficult to find candidates who are members of public bodies or who are employed in certain occupations because they cannot he assured that they can return to their jobs if they are unsuccessful in their candidatures. It is a huge burden to place on anyone, particularly the kind of people we want to serve in the Welsh Assembly—that is young, active people—to ask them to abandon a job or a career at the beginning and to take a step into the unknown on becoming a candidate for the Assembly.
As regards Westminster elections, there may be some good reason for this—although I do not know what it is—that is hallowed by tradition. But one would have hoped that in coming afresh to this particular subject in the context of the Welsh Assembly a different approach could have been taken. I have no objection to the various offices that are described in Parts I and II and I have listened to the explanation that has been given by the Minister. I conclude by congratulating the Welsh Office on producing such a succinct document.

§ Lord McIntosh of Haringey
I am grateful to the noble Earl, Lord Attlee, for his comments. I hope that he will pass on to the noble Lord, Lord Roberts of Conwy, our best wishes for his speedy recovery.
On the point raised by the noble Lord, Lord Thomas of Gresford, he raised it on the Scottish Order and I was here to hear him. I am afraid the answer is the same: this mirrors the rules which apply to parliamentary elections. Section 14(1) of the Government of Wales Act provides that a person who is disqualified from being a member of the assembly by virtue of Section 12, which includes the draft Order in Council, would be unable to take up the seat if elected, as the effect of disqualification would mean that the election was null and void. That is the technical difficulty.

§ Lord Thomas of Gresford
My Lords, he would be unable to take up the seat. That is what we were discussing under the Bill. That does not say that he would be unable to be a candidate. There is power for the Government to change their mind on this issue and permit people to stand without having to resign their positions.

§ Lord McIntosh of Haringey
My Lords, I can see the rationale behind that point, but because of the way that the Act has been drafted—and this is not in the order—the election would be null and void and there 1768 would have to be a new election. A resignation at that stage would not do the trick. That is the problem we have. The consent to nomination in the assembly election process will require each candidate to confirm that they are not disqualified from membership of the assembly. Of course we are talking about only a relatively small number of those who would be disqualified. As I said in my opening remarks, employees will be able to ensure, and should ensure—and employers should agree—that they will be reinstated if they fail in the elections. But that is a matter for their contract of employment rather than for this order. I understand the noble Lord's point, but it relates to the Act and not to the order.