Determination of Issues as to Assembly's Powers

Orders of the Day — Wales Bill – in the House of Commons at 12:00 am on 19th April 1978.

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Amendment No. 315 proposed [18th April],] in page 29, line 16, at end add 'or whether the failure to take any action constitutes a breach of the law'.—[Mr. Raison.]

Question again proposed, That the amendment be made.

Photo of Mr George Thomas Mr George Thomas , Cardiff West

I remind the Committee that we are also considering 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 order 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 Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

When the debate was interrupted last night, I had had time to make only a few preliminary remarks. I shall begin by summarising them briefly.

I emphasised that the functions of the Assembly are essentially ministerial in character and that the Assembly will be performing those functions on behalf of the Crown in precisely the same way as do Ministers of the Crown. In that respect, there will be no difference between the Assembly and Ministers, whether in regard to their statutory functions or the prerogative and non-statutory functions mentioned in the debate yesterday.

Whether we are referring to Clauses 11 and 12 or to Clauses 61 and 62, we are not speaking of powers and functions different in character from those exercised by Ministers on behalf of the Crown. The Assembly is a collective body acting on behalf of the Crown.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

Can the Attorney-General give an example drawn from ordinary United Kingdom legislation of powers exercised by Ministers analogous to the extraordiary range of powers under Clause 11?

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

There are a range of powers under Clause 11. I suppose that the answer is, for example, the sort of functions that are carried out by the Minister with responsibilities for sport and the Minister with responsibilities for the arts. These matters do not necessarily come under the statutory sanction of a piece of legislation. That is what the clause deals with in that respect.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

My right hon. and learned Friend said yesterday that as regards Clauses 11 and 12, and to a certain extent Clause 13, these are the sort of powers exercised by Ministers of the Crown even if they step outside what is properly or constitutionally the subject of ministerial powers as such. Will my right hon. and learned Friend expand on that statement? It was not especially clear.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

My hon. Friend must have misunderstood what I was saying. I was saying that certain powers in the Bill will be given to the Assembly as a body in its capacity as Ministers of the Crown. We have the other powers that are provided for in Clauses 11 and 12 that are of a prerogative nature. The Assembly may exercise those powers if it wishes. In so doing, it will be exercising them as Ministers of the Crown. I thought I had made that point abundantly clear. The Assembly will be exercising such powers in exactly the same way as its other powers.

The powers of a prerogative nature are put into a different category as they do not stem directly from specific statutory powers other than the powers contained in Clauses 11 and 12. Those powers are provided merely to ensure that it is the Assembly that may be able to exercise prerogative powers that would otherwise be exercised, no doubt, by my right hon. and learned Friend the Secretary of State for Wales or by other Ministers.

Photo of Mr Emlyn Hooson Mr Emlyn Hooson , Montgomery

Is it not true, in answer to the question "What constraints will there be on the Assembly in respect of these powers", that appear to be wide, that there are financial constraints all round and that financial control of the Assembly lies in the House of Commons?

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

There are financial constraints that will govern the Assembly's expenditure, whether we are dealing with matters that are directly transferred to the Assembly as statutory powers or with prerogative powers, in exactly the same way as there are constraints on Ministers in the exercise both of their statutory and prerogative powers.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

Will the right hon. and learned Gentleman allow me to doubt when he says that there is no difference between the Assembly and Ministers? In Clause 10(2), it is stated: Any function given to a Minister of the Crown … under an enactment listed in Schedule 3 … shall continue to be exercisable by him as regards Wales notwithstanding that it is exercisable by the Assembly by virtue of subsection (1). In other words, there is there concurrent power. At present, Ministers do not have concurrent powers with bodies that are below them. Neither do bodies which, for example, are like local authorities have concurrent powers with Ministers who are above them. Therefore, to say that there is no difference between the Assembly and Ministers does not appear, with deep respect to the Attorney-General, to be an accurate statement of the law.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

With respect to the right hon. and learned Gentleman, whose experience in these matters is unrivalled, I disagree with him. It is normal for Ministers to have concurrent powers. The fact that concurrent powers exist does not make any difference to the principle which I have enunciated and which the hon. Member for Aylesbury (Mr. Raison) rightly enunciated in his opening remarks.

4.15 p.m.

I turn from that point to recapitulate as briefly as possible the few remarks I was able to make yesterday before the guillotine fell. The second point that I sought to make was that, as several right hon. and hon. Members expressed yesterday, the Assembly, acting on behalf of the Crown, must be assumed to be a responsible body that will act responsibly. I qualify that to this extent only, that I should say—I am making no party point—that it will act as responsibly as Ministers who will exercise parallel functions.

That principle is basic to the whole concept of this legislation. It rests on a foundation to which I hope we all subscribe—namely, that the Assembly will be a democratically elected body responsible to its electorate and, for all I know, with changes of political control from time to time like any other elected body, including the House of Commons. I do not believe that that proposition is seriously in issue.

It is said that on occasions the Assembly, however responsible, may act in breach of the law, whether by commission or omission, whether by seeking to exercise powers that have not been transferred or by ignoring duties laid upon it by Parliament, whether by error or by intent. I accept that. The clause would be unnecessary if such possibilities did not exist. I welcome the fact that there has been no opposition to the principle of the clause but only attempts to strengthen it. I in no way deprecate those attempts. On the contrary, I welcome the constructive speeches of right hon. and hon. Members and their careful scrutiny of the clause to ascertain what gaps it leaves and whether and how they should be filled.

As I shall show, I am able to go quite a long way along the same route as right hon. and hon. Members, or, at least, in the same direction. I hope to ease most, if not all, of their anxieties.

The amendment raises three substantial points. The hon. Member for Aylesbury—I summarise his careful argument shortly—is concerned that Clause 72 embraces acts of commission but not of omission. The clause enables me to ask for a ruling of the court where in my judgment what the Assembly has done, or proposes to do, is beyond its powers, but not in the opposite situation where the Assembly does not act when it is under a statutory duty to act, or perhaps because it wrongly takes the view that it has no power to act. The hon. Gentleman is right. Issues of that sort may arise either way.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

Is it conceivable, given the political reality, that an Assembly born in these circumstances will ever take the view that it has no power to act? That is stretching human nature rather far.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

If my hon. Friend had waited for one moment, he would have heard me explain just how that situation might very well arise.

The hon. Member for Aylesbury is right. Such issues may arise either way. I fully accept that, however anxious the Assembly or, for that matter, Ministers of any party may be to comply with the law, there is always a temptation to use what might be called a demarcation dispute to avoid taking unpopular action. That is the answer that I give to my hon. Friend the Member for West Lothian (Mr. Dalyell). Therefore, I am with the hon. Member for Aylesbury in spirit. However, it is necessary to work out just how far to go and in what form we should act so as to fill the gap. Indeed, Amendment No. 315 partly fills the gap. Therefore, I undertake that at a later stage of the Bill's progress the Government will table their own amendment to achieve this objective, and on that basis I hope that the hon. Gentleman will feel able in due course to withdraw the amendment.

Amendment No. 342, in the name of the hon. and learned Member for Cleveland and Whitby (Mr. Brittan)—and may I take this opportunity of congratulating him on the "learned" part—raises two other points. The first is that it seeks to give to persons other than the Attorney-General the power to take action under the clauses. The view that the citizen should have a right to take proceedings against the Assembly if he has the requisite locus standi, and if, as the hon. and learned Gentleman put it, he is an aggrieved person or has the requisite special interests, was supported by right hon. and hon. Members in the debate. It is entirely consistent with our existing system of judicial control of the Executive—that is, of those acting on behalf of the Crown—that the citizen, within the limits prescribed by our laws, should be able to bring proceedings in the courts against the Executive.

As I emphasised in opening, the Assembly will be the equivalent of Ministers acting on behalf of the Crown within the functions which are transferred to it or which it may operate by virtue of Clause 11. We think it right to put it on a par with Ministers in regard to the rights of citizens to seek judicial determinations.

Clause 80 enables orders to be made amending existing legislation as may appear to be necessary or expedient in consequence of the passage of the Bill. We intend to use that power to amend the Crown Proceedings Act 1947 so as to give to the citizen in relation to that Act the same rights against the Assembly as he has under the Act against Ministers of the Crown. I believe that that will achieve the intended objective of this part of the amendment but, I suggest, in a more satisfactory and comprehensive way than by tacking it on to Clause 72, which is concerned solely with the powers of the Attorney-General in particular circumstances. Thus in spirit we are with the Opposition on two of their three points, and I have given the Government's undertaking on them.

There remains the final point. The amendment would empower the courts to go beyond the provisions of Clause 72 and of the Crown Proceedings Act and of the law as it stands today in respect of Ministers of the Crown, since it would enable the courts to order the Assembly to fulfil a duty placed upon it. Thus, it seeks to give mandatory powers, though not restraining powers, by injunction.

It must be said at once that, in so far as the amendment would give any general power of enforcement, whether mandatory or injunctive, it would be treating the Assembly not as an organ of the Crown on a par with Ministers but as an inferior organ on a par with local authorities That would be contrary to the whole intent and spirit of the legislation and would get this new system off to a more precarious start.

Our system means that one may obtain a declaration of rights against those such as Ministers acting for the Crown but not, where they are acting on behalf of the Crown, orders compelling them to act in accordance with the law. There are many good constitutional reasons for that, but I suggest that this is not the time or place to debate our whole system of administrative law and the Committee would not wish me to do so. We expect those who act for the Crown to respect the determination of the court without being ordered to do so. The same system operates in the United States, even up to the Supreme Court. If that system is to be changed, it should be changed in the context of a review of our administrative law as a whole. It should not be changed as part of this Bill so as to place one organ of the Crown in a manifestly inferior position compared with other organs of the Crown.

The Assembly may transgress the law, and so may Ministers of the Crown, irrespective of party, but when rights have been judicially determined it is the essence of our system of the rule of law that Ministers give effect to those determinations. The same should operate for this newly created organ of the Crown. It is not to be assumed that it will cast aside the constitutional conventions and the rule of law. It would be wrong at its very birth to discriminate against it.

Therefore, I cannot accept the third point of the amendment. I hope that these proposals will not be pursued since I cannot advise the Committee to accept them. I have gone as far as I can—indeed, a very long way—in accepting the valuable thinking that underlies them.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

I very much welcome the fact that the Attorney-General has been able to go as far as he has, and I also thank him for his kind words of congratulation to me. In view of what he said, I shall not recommend that we should divide the Committee.

I should like to deal with three points raised by the right hon. and learned Gentleman. On the first point, he said that he accepted the argument totally and would produce the appropriate amendment to deal with the problem in the way that he thought fit. Therefore, my welcome for that statement can be unreserved.

As for the second point, the Attorney-General said that he intends to use Section 80 powers to amend the Crown Proceedings Act to enable the individual citizen who is aggrieved, or who has an interest, to take proceedings against the Welsh Assembly. Again, we very much welcome the fact that the spirit of Amendment No. 315 has been accepted to that extent, but before we commit ourselves not to raise the matter again, could the Attorney-General, at the same time as he puts forward his amendment to deal with the first point, also produce for the consideration of the House at least a draft of the way in which he would seek to amend the Crown Proceedings Act, so that we can see whether what he has in mind covers the same area as the amendment to which I spoke yesterday evening.

Obviously, it can be no more than a draft. I assume that it will cover the same ground, because the Attorney-General in his speech did not seek to differentiate in any way, but it would be helpful to see a draft.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

The hon. and learned Gentleman will understand that these matters are not entirely in my hands. I cannot give an absolute undertaking, but I shall do my best.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

I am grateful for that asurance, and I am sure that we shall be able to have a sufficient indication of what is intended in order to allow us to form a view. I suspect that no amendment will be required to deal with that point.

On the third point mentioned by the right hon. and learned Gentleman, although I would not seek to press the matter to a Division at this stage, I believe that it is something to which we may wish to return. I believe that the Attorney-General has raised issues of a political character which are not satisfactorily dealt with in what for this purpose was treated as purely a legal type of argument. The Attorney-General has proceeded on the basis that the Assembly is exactly on all fours with a Minister of the Crown and that so long as the law is altered in such a way procedurally, and from the point of view of language used, to allow the same remedies to be available to citizens and to the Attorney-General as against public bodies, that deals with the matter.

I submit that that is not the correct approach. The fallacy of it can be illustrated by the existence of Clause 72. If we were talking about Ministers of the Crown, not only would it be unnecessary, it would be inconceivable, that the Attorney-General should be given a statutory right to take legal action against other Ministers of the Crown, because they would be members of one and the same Government and presumably either the Ministers of the Crown would have acted on the advice of the Attorney-General or he would have resigned, and the Ministers of the Crown would be acting on the advice of some Attorney-General who could be persuaded to give the appropriate advice.

4.30 p.m.

On either view of the matter, therefore, the Government, by including Clause 72 in the Bill, have recognised that it is not just a question of saying "Right, we are setting up a body which is like a Minister of the Crown. Let us use language and procedure to ensure that people have a right of action against such bodies as they would have against a Minister of the Crown". Once we say that the Attorney-General can bring an action against it we are immediately recognising the essential political reality that we may give the Welsh Assembly the powers of a Minister of the Crown but we are creating a separate, politically independent body which it is unrealistic to treat as in every sense a Minister of the Crown.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

I am obliged to the hon. and learned Gentleman. Of course, he is quite right. We do not get this situation with Ministers of the same Government, simply because they are Ministers of the same Government and therefore the matter simply would not arise, but we have a different situation here. On consideration, would he not agree with me that, none the less, that difference should be one to which effect should be given to the minimum possible extent? That is what we are doing here. Of course, it can be blown up into a very big difference, but here we are seeking to reduce the difference to the bare minimum.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

Now the Attorney-General is shifting his ground and presenting this question in a political manner, in that in his speech he was presenting it in what one might call a formalistic way, saying that really the Assembly is the equivalent of a Minister of the Crown and that therefore all that is necessary is that the individual citizen should be given the same rights of action as against the Minister of the Crown. What he is now saying is that although the Assembly is not really a Minister of the Crown and is a separate body—and the fact that the Attorney-General can bring actions against it shows that this is so—none the less, as, in effect, a political judgment, we ought to the largest possible extent to treat the Assembly as if it were a Minister of the Crown.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

Obviously, the hon. and learned Gentleman must have misunderstood me. I am sure that that is my fault, in not being as learned as he is. I have made the point ad nauseam that the Assembly is in the position of Ministers of the Crown, but it is not—and I have never attempted to suggest that it is—in the position of Ministers of the Crown who are part of the same Government as the Westminster Government. That is the difference. All I am saying is that that difference has to be recognised in Clause 72 and should not be blown up any further than is necessary.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

The concept that "Ministers of the Crown" are not the same as "Ministers of the Crown in the same Government" is a very dangerous and difficult one, because the only kind of Ministers of the Crown of which I am aware who are not Ministers in the same Government are Ministers of the Crown in the sense that they are Ministers of the Crown in the sense of the Crown being the Head of an independent State—an analogy surely even more dangerous to draw than that which I sought to draw, and one which I am sure the Attorney-General would not wish to sustain.

The reality of the matter is that this is a profoundly political question and has very little to do with the law in a technical sense. I suspect that some, at least, of the hon. Gentlemen in the House will greatly welcome that fact. The reality of the situation is that the Government are saying "We will perpetuate a fiction, that because they are given the powers of a Minister of the Crown, we will ignore the fact that this is really a separate, although mercifully not independent, body. Therefore, we will treat it as if it were Ministers of the Crown and say 'You cannot issue an order to the Assembly'".

I do not wish to raise political hackles. The right hon. and learned Gentleman is quite right in saying we are not anticipating trouble round every corner, but even he conceded that the possibility of a conflict of this kind must be faced and that the appropriate mechanism should be placed in the Bill for dealing with it. The mechanism is a legal one. If the body is really a separate one, is it not appropriate that it should at least be made clear to that body that the courts which are to police these disputes should have power to issue an order?

Turning on its head the argument that the Attorney-General has put, I would argue that by making it clear in the enacting statute that the courts have a power to order the Assembly to take the action that is necessary to ensure that it complies with the law one is making it less rather than more likely that there will be resistance and political trouble, because if we leave it simply that the courts can make a declaration of right, as in the case of a real Minister of the Crown, that is all right as far as a single Government is concerned, since that Government can ensure that the Minister complies with the court order.

If we are talking of two completely separate Governments, however, at the very least the position would be clarified if, at the outset, it were made clear that the courts could not merely make an abstract declaration of legal rights, duties, obligations and powers but could issue an order as to what should be done to ensure compliance. Then at least, taking the right hon. Gentleman's words at face value, if the Welsh Assembly is as law-abiding and as anxious to observe constitutional proprieties as he believes, and as we all hope it will be, at least it will know what it has to do. Otherwise, it will be faced with an abstract declaration of a kind which may be appropriate in respect of a real Minister of the Crown but, I would suggest, is totally inappropriate for what is, in effect, an independent body, or at least a totally separate body with a different political constituency and a different political base.

I leave it at that, but I hope that what I have said will at least enable the Attorney-General to reconsider the matter. We are grateful for the two points on which he is moving and we hope that when he comes forward with an amendment he will also be able to express a view on reconsideration of the matters that I have just put to him. We, too, will reserve our position with regard to that.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I think that it is nailed boots with mud on them going into the Temple or the Law Courts, but I have the comfort of speaking to the unanimous, undisputed opinion of Government Back Benchers. With one of the signs that so often shed a blinding flash of light and illumine our proceedings—

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

This happens to you every day.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

It certainly happened to me last night at the beginning of my right hon. and learned Friend's speech, when he said: Indeed, it is right that when we look at this clause—and the powers generally which are thought to be necessary in the situation which we shall be facing when the Welsh Assembly is set up—we should look at it in the way in which the right hon. and learned Gentleman did. We are not facing a situation of, as it were, a hostile tribe. We are facing a situation in which there will be conferred upon the Welsh Assembly powers which are essentially powers of Ministers of the Crown". Today he reinforced this, because he said that we must assume it to be responsible, acting responsibly. He said that this is basic to the whole concept of devolution.

My view is that we would not be here on Day 41 if we were not discussing the activities of precisely a hostile tribe, because there is a hostile tribe.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

My hon. Friend assails himself.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

There is an element of truth in that, because I behave like most politicians will behave.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

Oh, yes. The serious point is that only a man who came new to our proceedings on Day 41 could have come out with such a statement. That is the trouble in all this. Here we have intelligent, able senior Ministers who are only now beginning to give their minds to precisely what these powers are about. Indeed, it is precisely what happened the other day when the Minister of State, Treasury, came new to this. He came to the Dispatch Box thinking that it was any old technical debate and that he could just read his Treasury brief.

My right hon. and learned Friend the Attorney-General comes in new after the rest of us have been educating ourselves for 40 days. Only a virgin to our debates could possibly have gained the idea that we must not treat the Assembly as a hostile tribe. If there had not been a hostile tribe in Scottish politics nothing is surer than that the House of Commons would not have been discussing this Bill and a similar Bill for 41 days. Not since Julius Caesar and the Nervii has there been tribal activity like this. If anyone thinks that I am exaggerating he should have been at Garscadden when the Minister of State and I saw precisely the tribal activity that took place there on the Saturday before last.

Photo of Mr George Thomas Mr George Thomas , Cardiff West

Order. The hon. Gentleman must not start on a round of geographical perambulations.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I shall cut the geography short and merely issue an invitation. I hope that my right hon. and learned Friend the Attorney-General will find time to come to Hamilton, Blantyre or Larkhill—

Photo of Mr George Thomas Mr George Thomas , Cardiff West

Order. The hon. Gentleman must confine himself to Westminster.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I shall not go on issuing geographical invitations. To come back to the point, Assemblies will not behave like this. If it were all a question of rational cosiness and of reasonable people, the Bill would not have been dreamed up. I see that the former Leader of the Opposition and former Prime Minister, the right hon. Member for Sidcup (Mr. Heath) has come into the Chamber. If everyone were to behave reasonably and rationally, as my right hon. and learned Friend the Attorney-General thinks, the right hon. Member for Sidcup would not have come to Perth and made the kind of speeches that he made, and he would not have given the commitments that he gave.

We are back at Day 1 of the story. I repeat, this is not the way to solve conflicts. Like every other senior Minister, as soon as there is danger of being drawn into this mire, drawn into the net, the right hon. Member for Sidcup takes to his heels and is through the doors of the Chamber at the very thought of it. When the other former Tory Prime Minister went to the House of Lords, he said to me "It is a terrible carry-on" and I replied "I know, Alec, it is a terrible carry-on, but you have some responsibility for the matter", and he looked at the heavens. No one wants to face the issues.

The issue here is the central issue, that the Assembly will not behave in the rational way in which my right hon. and learned Friend thinks it will behave. I want to make two quotations from his speech: On the other hand, if one is talking about a local authority then there is no doubt that Ministers—the Attorney-General in particular—have that right. But here we are talking about ministerial powers—powers which are the exact parallel of the powers which at present are held by Ministers of the Crown—a Secretary of State or other Ministers.But because it is recognised by the Government that it is desirable that any conflict that may exist in future—as to whether the powers are those of the Secretary of State in London or those of the Assembly in Wales—should in some way be determined then notwithstanding that they are ministerial powers this provision has been inserted in the Bill to enable the Attorney-General to—".—[Official Report, 18th April 1978; Vol. 948, c. 407–8]. 4.45 p.m.

Have I got the wrong end of the stick in supposing that the Attorney-General, by this kind of invitation, will take the place of the Judicial Committee of the Privy Council in respect of the Scotland Bill? If I am wrong, the Attorney-General will tell me. I get the impression that the issue that we are discussing is a very important one; it is the question of arbitration in cases of disagreement, and disagreement there will be. If the Attorney-General wants to correct me—

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

I usually respond to invitations of that nature. Of course the Attorney-General is not in the position of the Judicial Committee. All that the Attorney-General will do is raise the issue before the court. The court will then decide. In exactly the same way, the issue will be raised in appropriate cases before the Judicial Committee of the Privy Council, or other courts, and the courts will decide.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

This raises the interesting question of which courts will decide. It is all very well to say that the courts will decide. If I understand them aright, Lord Scarman and Lord Wilberforce last night in the House of Lords gave the impression that they, as senior Law Lords, did not think that the traditional courts of this country were the place in which political argument between two political organisations—governmental bodies—should be settled. They argued that if we were to do this there should be a constiutional court in this country.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

My hon. Friend took the opportunity to inform the Committee last night about certain developments in another place. On reading the record today, it is clear to me that he gave a totally one-sided view. Certain Law Lords advanced that proposition, but there were emphatic disagreements by others. My hon. Friend must make allowance for this.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

They were outnumbered three to two—Lord Hailsham, Lord Morris of Borth-y-Gest and Lord Dip-lock. For two Law Lords as senior as Lord Wilberforce and Lord Scarman to say this gives the impression to the layman that there is a problem here. I do not believe that Lord Wilberforce and Lord Scarman would say in a speech in the House of Lords that they thought that there should be a constitutional court to resolve these difficulties if they were not convinced of it.

The question put—I know that an answer cannot be given off the cuff 13 minutes before the guillotine falls—is whether the Attorney-General and the Government are satisfied with this way of settling disputes between the Welsh Assembly and the Westminster Government, because someone has to act as an arbitrator.

Furthermore, if there is to be serious discussion of a constitutional court for this country, the proper way to do it is for proposals to be set out at the beginning of a parliamentary Session, not to have this kind of argument as a fag-end to the Wales Bill. I am not convinced by these glittering lawyers. There is a problem, and someone has to resolve the differences. There are great differences of opinion as to who that someone will be. I do not think that I misinterpret the argument.

When I hear some of the most distinguished Law Lords in the land arguing that the traditional courts of this country are not ideal for this purpose and that we should set up a constitutional court, I think that I am fair in asking the Attorney-General—who better?—what is the Government's view of a constitutional court and when, during these proceedings, they will comment on the remarks of the Law Lords in another place. Clearly, at 10 minutes to 5 o'clock it is not the time to do that when the guillotine falls at 5 o'clock. Nevertheless, a marker is put down at various stages of the Bill, and somehow I shall try to extract an answer. The Attorney-General may look fed up and bored, as various Ministers have done, but we have to extract an answer.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

Before I reveal what I intend to do about my amendment, I should like to ask the Attorney-General a question. He said that I was right when I assumed that, broadly speaking, the powers of Ministers were being handed over to the Assembly and that the Assembly would have only the powers in relation to Wales that are at present held by Ministers. I think that that is a correct statement.

We then had a brief consideration of Clause 11, which was an illustration of this point. As I said last night, when Clause 11 had the spotlight on it because it was missed out earlier due to the guillotine, I was flabbergasted at what it does. The clause states that the Assembly may do anything which it considers appropriate to support museums, the Welsh language, and so on. The bone of what the Attorney-General said is that that is a prerogative power which already lies with Ministers of the Crown. Is he telling the House that Ministers of the Crown have the power to do anything that they consider appropriate for particular purposes?

I understand that this is a power which is not embodied in any statute. I suppose that it is a power which derives from tradition. But I am flabbergasted if it is true that Ministers have the power to do anything that they consider appropriate. This revolutionises my view of the rule of law and statute.

Can the Attorney-General confirm that the power that is handed over to the Assembly in Clause 11 is exactly the same as the power that Ministers of the Crown in the United Kingdom Government already have?

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

Certainly, I can confirm that, subject to the requirement of financial sanction, where that is necessary. The Minister of State has given me one example that might help the hon. Member. He said that he has no statutory powers for the general welfare of the Welsh language, but no one would suggest that he should not concern himself with that, or, indeed, that he should not spend such money as he is entitled to spend, within the financial constraints, on advancing the Welsh language. His predecessor in the Conservative Party set up a non-statutory council for the Welsh language for that purpose.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

I take the Attorney-General's point about financial restraints. They affect most actions of Government. But in this case, if one reads the clause literally—and I assume that clauses are meant to be read literally—the Assembly can do anything that it considers appropriate to support the Welsh language.

Let us suppose that the Assembly decided that only the Welsh language could be taught in Welsh schools. Undoubtedly that would give great support to the Welsh language. It would not necessarily cost any more money. I cannot see that there would be any overwhelming financial restraint on that. Is the Attorney-General saying that that kind of power would be available to the Assembly?

It seems to me that we have returned to the argument that occupied the sixteenth and seventeenth centuries, when Parliament was trying to restrain the Executive. I thought that, on the whole, it met with a measure of success. But if the Government can do anything that they consider appropriate for all sorts of purposes, I wonder what parliamentary power adds up to.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Southwark Dulwich

The hon. Member must not mislead the House. I am sure that that is not his intention. As is well known, any of these prerogative powers is subject to the provisions of legislation passed by Parliament. Where there is not a restrictive provision these powers exist.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

That does not relieve my anxieties although it may well be an accurate statement.

At this time we cannot open up a debate on the whole of Clause 11, but would the Attorney-General, with his right hon. and hon. Friends, be prepared at least to have another look at the clause and consider whether this enormous and sweeping power is appropriate? Could the Attorney-General say that he will think about it, without necessarily undertaking to change the provision? He said that he normally rises to his feet in response to such requests. Perhaps I can tempt him to his feet.

I see that the Attorney-General suddenly has become shy on this matter. I hope that he will consider the matter seriously. It might be a question of impressions, but impressions are important in politics. I hope that he and his colleagues will think about this.

I said at the beginning that I thought that this would be an important debate. It has proved to be important. We can say that fairly and with due modesty. I am pleased at and grateful for the response of the Attorney-General to my amendment. By and large, concessions have been wrung from the Government in the Division Lobbies during the course of the devolution Bills. However, the Attorney-General has responded in a generous and sympathetic manner to my suggestion.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mr Emlyn Hooson Mr Emlyn Hooson , Montgomery

As I listened to the hon. Member for West Lothian (Mr. Dalyell) I reflected whether it was possible to have a hostile tribe of one. I came to the conclusion that it was. In his opposition to the devolution Bills for Scotland and Wales for 40 days and 40 nights without stopping, the hon. Member really has established himself. I was reminded of an old Welsh poem "Y Gododdin", which is said to date from the sixth or seventh century. It is about a visit of a Welsh tribe to Strathclyde, and refers to the sole survivor who came back to Wales from Scotland. The hon. Member has been the sole survivor of the Scottish opposition to the Welsh Bill.

The Attorney-General should attend these debates more often. This is the first true debate that we have had on a section of the Bill, in the sense that there has been a constructive effort to improve the Bill and a reaction from the Government to it. Apart from that, we have had a repetition of Second Reading speeches.

The Attorney-General is absolutely right in his approach. I wondered how he would object to the constructive argument made by the hon. Member for Aylesbury (Mr. Raison) yesterday on this matter. I wondered whether he would reject it. I was pleased to hear his reply.

I turn to the third power which is involved in the amendment presented by the hon. and learned Member for Cleveland and Whitby (Mr. Brittan). The Attorney-General rightly said that he objected to the proposition that the court should make an affirmative mandatory order to the Welsh Assembly. The reason for this is fairly obvious. It is that of course the Assembly cannot be exactly parallel to the Minister but its powers are derived from those which are enjoyed by the Secretary of State. This is the practical approach to the problem. Purist approaches on this type of Bill do not help.

I believe that we shall gradually move nearer a constitutional court but that we are nowhere near it yet. If the hon. Member for West Lothian was alarmed when the Law Lords divided three to two yesterday, he should study the matter to see how often they make decisions that become the law of this country by a majority of three to two. I am not alarmed about that.

Under the present arrangements the House of Commons should be able to order the Assembly to fulfil its duty on a political basis. If the court makes a declaration the House of Commons has the power to insist that the Assembly carries out its duties. That is how it should be.

I believe that we are on a course that will evolve and eventually lead us in the direction of a written constitution of federal powers, and of a constitutional court. But that is yet in the distance. On the basis of what has happened today I think that the Attorney-General's approach was absolutely right. He was right to concede the first two points and to resist the third.

It being Five o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [1st March], to put forthwith the Question already proposed from the Chair.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 242, Noes 12.

Question accordingly agreed to.

Clause 72 ordered to stand part of the Bill.

The CHAIRMAN then proceeded to put forthwith the Questions necessary for the disposal of the Business to be concluded at Five o'clock.