Determination of Issues as to Assembly's Powers

Clause 72 – in the House of Commons at 12:00 am on 18th April 1978.

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Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury 12:00 am, 18th April 1978

I beg to move Amendment No. 315, in page 29, line 16, at end add 'or whether the failure to take any action constitutes a breach of the law'.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

With this amendment we are to take Amendment No. 342 in page 29, line 16, at end add 'and without prejudice to the foregoing, the Attorney General and any other person may institute and the Assembly may defend proceedings seeking a determination of any question whether the Assembly is in default in the fulfilment of any duty placed on it or transferred to it by this Act and seeking an oder requiring the fulfilment of such duty, provided that no such proceedings shall be instituted by any person other than the Attorney General unless that person is or would be aggrieved by such default or has an interest in the fulfilment of such duty.'.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

The Committee will agree that the clause is very important. It supplements the limited provisions of Clause 35, which relate only to reserved matters or to matters to do with the European Community. Clause 72 empowers the Attorney-General to take proceedings against the Assembly if it exceeds or proposes to exceed its powers. I think that that provision is entirely right.

However, the clause does not provide a mechanism for ensuring that the Assembly carries out the law of the land. In a sense it can be said that it covers sins of commission but does not cover sins of omission. I am told by one of my hon. and learned Friends that it covers malfeasance but does not cover non-feasance. My amendment seeks to do that. It seeks to cover failure by the Assembly to carry out any action, within its own terms, which is a part of the law of the land. As I understand it, the amendment of my right hon. Friend the Member for Cambridgeshire (Mr. Pym) is also concerned essentially to do the same thing.

Perhaps I may say in parenthesis that my amendment takes two lines to say what it has to say whereas my right hon. Friend's amendment takes nine to say what he wants to say. I appeal to my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), who wrote a report on this matter, for his support. I think that after writing his report he must agree that a two-line amendment is invariably better than a nine-line amendment. But I have a nasty sneaking feeling that there will be some lawyers or clerks in the Committee who will say that the nine-line amendment is necessarily better than the two-line amendment.

The problem that my amendment seeks to discuss arises from the nature of this rather absurd Bill. The essential ingredient of this Bill, unlike the Scotland Bill, which was bad enough, is the attempt to separate the law-making from the executive power.

Those who argue that we are talking in this Bill about very much the sort of relationship that exists between central and local government in my view have got it quite wrong, because the Welsh Assembly is meant to take over certain of the powers, which may include supervisory powers, of central government. In no sense is that Assembly to be seen as a variant on local government.

It seems to me that if we are to have the scheme which is put forward in the Bill it is absolutely essential that there should be some power of the type I am proposing. Without such a power, the laws could become a mockery and Parliament—this House and the other place—could be made to look impotent.

It is also possible that we could have a Welsh Assembly which could use non-compliance with, or non-enforcement of, the law as an important political weapon. I do not think that if we have a Welsh Assembly it will normally seek to flout the law of the land. I believe that by and large it will be responsible. It may occasionally be committed to views which I rather deplore, but I think that it will be perfectly serious.

However, when we are making constitutions, as we are now, we have a duty to consider the worst possibilities rather than assume that everything will be carried out in an atmosphere of airy congeniality and good wishes. Therefore, it is entirely proper that, as I have said in previous debates, we should be prepared for things going wrong. That, essentially, is what my amendment is about.

Before saying a little more in the development of my case, I want to raise a question to which we should have an answer, even though the answer may well be fairly obvious. The question that I should like to put to the Attorney-General, who I am glad to see taking part in the debate, is this. Is it the case that the Assembly's actions can effectively be only actions that are specifically assigned by law to the Secretary of State? In other words, if one is considering the powers of the Assembly which are transferred to it, is it fair to say that those powers are simply those which our existing laws say are responsibilities that lie with the Secretary of State?

9.45 p.m.

In the major fields of education, housing or health, does the Assembly have any powers except those which, under our existing statutes, are assigned to the Secretary of State? I do not think that I need labour the point. As the Attorney-General knows better than I do, in any statute we are liable to find certain duties which fall on local authorities, and other provisions which say that the Secretary of State shall or may—it may be a power or a duty—do such and such.

If I understand the Government's scheme correctly, what is transferred to the Assembly has nothing to do with what the local authority is required to do but has entirely to do with what the Secretary of State is required to do. Often the job of the Secretary of State is to make sure that the local authority does what it ought to do. I should like the Attorney-General simply to clarify this point, to make it clear that what we are talking about is simply the transfer of the powers of Ministers to the Assembly rather than in any sense giving the Assembly a whole range of activities within the devolved fields.

I suppose it is the case, therefore, that any action handed over to the Assembly which is not assigned by law to Ministers is technically ultra vires. The Assembly in itself has no control over whether local authorities provide education or housing or social services or services for the disabled—except in so far as the existing laws say that the Secretary of State shall make sure that the local authorities provide services for housing, education, the disabled, or whatever it may be.

I hope that I have made that point clear enough for the Attorney-General to be able to answer. It seems to me that there is confusion about this question. In talking about the supervisory role of the Secretary of State, I mean not just those rather sinister powers which sometimes appear at the back of legislation but the financial powers which have a great deal to do with making sure that the local authorities do what the Government want them to do.

It should be clearly understood that the Assembly cannot override the law. There is still some public misapprehension on this point. To support that statement, I shall quote briefly from an article which appeared in New Society on 13th April 1978, entitled "A Welsh Echo" by Gavin Weightman. He states: Wales abolishes its area health authorities, new town development corporations (both of them) and its Central Advisory Council for Education.… In fact, there are no firm prospects of the proposed Welsh Assembly doing any of these things.… The point is that, after devolution, it could if it wanted to. I believe that those statements are wrong and that the Welsh Assembly could not abolish its area health authorities, it could not abolish its new town development corporations, and it could not abolish its Central Advisory Council for Education. Indeed, I have a sneaking suspicion that Wales does not have a Central Advisory Council for Education. It is on exactly the same Vote as England, which by statute is meant to have a Central Advisory Council for Education but which since the days of the Plowden Committee, on which I had the honour to sit, has been in abeyance and therefore in breach of the law. I should be grateful if the Attorney-General would confirm that the statement put forward in the article that I have quoted is an incorrect statement and a misunderstanding of the position.

Photo of Mr Emlyn Hooson Mr Emlyn Hooson , Montgomery

Of the two new town development corporations, one has already been absorbed into the Development Board for Rural Wales.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

I will not dispute that. I am trying to get at a more important point in this context, which is that if an Act of Parliament says that there shall be a central advisory council, or area health authorities, or new town development corporations, it is not within the purview of the powers of the Assembly to say "No, we shall not have one after all." I may be wrong about new town development corporations. I do not claim to be an expert in this matter. But it is very important that the public should understand the nature of the powers which are put forward in the Bill.

Having raised that point, I should like to turn to one or two specific examples of where these sins of omission might occur. Basically, they must occur where the law, in effect, says that the Secretary of State "shall" do such and such. In other words, what we are talking about—if I understand the position correctly—is not what appear in Bills as "may" clauses but "shall" clauses. I am referring to those matters where there is a clear duty on the Secretary of State to behave in a particular way.

Where the law simply says that a local authority shall do something—or that an individual shall or shall not do something—I imagine that that is a matter for decision by the courts. What we are concerned about is the situation where the Secretary of State has a particular burden.

I should like to give one or two examples of what I have described as "shall" clauses. It is quite difficult for a non-lawyer Back Bencher, unarmed with research assistants and so on, to comb the statute books as thoroughly as Ministers would if they were in an equivalent position. Life is too short, and my knowledge of the law of the land is too limited, to do more than bring forward one or two specific examples.

One example which I found was in the Town and Country Planning Act 1971 where Section 24 says that: The Secretary of State shall by order … provide for the granting of planning permission". This refers to what are generally called general development orders. In other words, that particular Act does not say that the Secretary of State "may" provide by order for the granting of planning permission. It states that he "shall".

I do not envisage that the Welsh Assembly would seek to upend, or not to implement, that particular notion. But it is just possible that it might take a totally different view of planning requirements from that which is embodied in the law of Britain as it stands. It is reasonable that we should be sure that the Assembly is not able to honour this particular law in the breach rather than in the observance.

Better examples can perhaps be found in the National Health Service Reorganisation Act 1973, where there is a sequence of sections which lay duties, as opposed to powers, on the Secretary of State. Section 3 states: It shall be the duty of the Secretary of State to make provision for the medical and dental inspection at appropriate intervals of pupils in attendance at schools maintained by local education authorities". Section 4 says: It shall be the duty of the Secretary of State to make arrangements, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, and so on.

Section 5 says: It shall be the duty of the Secretary of State to establish by order in accordance with Part I of Schedule 1 to this Act—(b) authorities, to be called either Area Health Authorities or Area Health Authorities (Teaching) in accordance with the following subsection, for such areas in Wales and the said regions as he may by order determine;". Section 6 says: It shall be the duty of the Secretary of State to exercise the powers conferred on him by subsection (1) of the preceding section and the following subsection so as to secure—(a) that the regions determined in pursuance of those subsections together comprise the whole of England, that the areas so determined together comprise the whole of Wales and those regions and that no region includes part only of any area;". As I have said, I do not think that it is likely that the Welsh Assembly would want to overthrow any of these provisions, but it might. It might decide that it does not wish to have that form of organisation for the National Health Service in Wales. In other words, it might decide that it is not prepared to enforce the law of the land as embodied in the 1973 Act. Therefore, it is very important that we know where we are. The question which I put is, what will happen if the Assembly decides not to operate the law as it is set out?

Very good examples of the problem are to be found in education, a subject on which I touched in an earlier intervention. Sections 70 and 71 of the great 1944 Education Act lay a duty on the Minister, or Secretary of State as he now is, to provide a register of independent schools and to serve notice of complaint on independent schools which do not meet certain standards, and so on. In other words, the 1944 Education Act recognises the existence of the independent sector in education and says that the Secretary of State has certain duties which are in a sense duties of supervision but which are also duties of support for the independent sector in education.

It is conceivable that a Welsh Assembly is elected which is not very keen on independent education and which decides that it does not wish to operate these provisions of the 1944 Act in terms of independent education. I am asking the Attorney-General to say what will happen in that case, and the purpose of my amendment is to make sure that it will not be within the power of the Welsh Assembly to take that kind of decision in flat defiance of the law as set out by Parliament.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

It will be possible for the Scottish Assembly to do precisely that.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

Of course, because the Scottish Assembly is a legislative body. I take the hon. Member's point, but for the moment I want to concentrate on Wales.

I give one other example from education where perhaps the politics are the other way round. This, again, is an example on which I touched in an earlier debate. It relates to the provisions of the 1976 Education Act which set out to impose comprehensive education on every local authority regardless of whether the authority or the people of the area wished to have it. Section 1 of the 1976 Act provides that local education authorities must have regard to the comprehensive principle. But, interestingly enough, when it comes to the way in which that is to be enforced, it gives the Secretary of State only a power and not a duty to enforce.

Up till now, I have been talking about areas where the word "shall" is used and there is a duty. Now there is a duty on the local authority to have regard to the comprehensive principle, but there is only a power with the Secretary of State to make sure that the provisions of this Act are carried out.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

What my hon. Friend has said of the Secretary of State would appear under Clause 72 to be equally true of the Attorney-General. He is merely given power—he "may" institute and the Assembly "may" defend proceedings for the determination of any question. If the object of the Attorney-General being mentioned in the Bill in this way had any force, one would have thought that he would have been placed under an obligation so as to ensure that the statute was observed.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

That is an extremely important point. I was not proposing to touch upon this question of the place of the Attorney-General. He does not appear directly in my amendment, and I have the feeling that my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) will say a little about the Attorney-General specifically. So I shall not be drawn, other than to say that is an important part of this debate.

I was saying that the 1976 Education Act opened up the possibility that local authorities in Wales might decide not to implement the provisions of that Act. The Assembly might be sympathetic the other way rather than with the views of the present Government. It might therefore do nothing about making sure that the local authorities operated the provisions of the 1976 Education Act. Although in principle I should be delighted if that occurred, I hardly feel that the present Government would be happy with a situation where it was possible for both local authorities and the Welsh Assembly to defy the intentions if not the strict letter of the 1976 Education Act.

Photo of Sir Anthony Meyer Sir Anthony Meyer , Flint West

Will my hon. Friend agree that particularly in education there is potential for conflict very near the 388-90 surface. In many parts of Wales although there are—

It being Ten o'Clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.