Mr. Deputy Speaker:
With this, it will be convenient to discuss the following: new clause 9—Concordats between the Assembly and Departments of State—
'.—No amendment to a concordat between the Assembly and a Minister of the Crown may be made without first having been agreed to by majority vote at a meeting of the Assembly.'.
There is a saying about a house divided against itself. The Government may have to learn from recent experience.
The new clause has a simple purpose: it is to say that we are still here. So much of the legislation seems to concern moving responsibilities away from this House; the new clause is designed to bring those responsibilities back, especially as they relate to concordats.
I hope that the new clause will be regarded as innocuous enough, and that the Government will accept it. It goes to the very heart of the Government's attempts, ever since 1 May, increasingly to bypass Parliament. I was interested to watch the Secretary of State's impatience as the clock ticked towards the time when the last debate was supposed to end. I remind him that it was he who set the time limits, against the wishes of the Opposition. He should not, therefore, look impatient—
That—and the right hon. Gentleman knows it—is a complete travesty of the truth. It was the Opposition who suggested that these matters be taken on the Floor of the House, a principle which I readily conceded. The Opposition have been party to the agreement all the way through, and the right hon. Gentleman knows that the Government generously allowed two hours of additional time today in view of the brief statement at the end of Question Time. The only reason I was impatient was that I was anxious to reply to the remarks of the right hon. Member for Caernarfon (Mr. Wigley), and the hon. Member for Beaconsfield (Mr. Grieve) was preventing me from doing so.
That was not the first time this evening that the right hon. Gentleman has appeared impatient. Had he accepted our suggestions about the timetabling of these parts of the Bill, he would have had rather more time to make his case.
The Government's attempts to bypass Parliament really know no bounds. One of the few Divisions in which the Prime Minister has voted since 1 May was earlier today, on the business motion governing today's debates. That is yet another example of the Government's disdain for the House.
Concordats may sound friendly, but when we begin to examine what they are and what they will do, we find them rather sinister. Earlier this year, we were helped by a Government written answer which had attached guidance setting out their view of the purpose and nature of these concordats. I have looked at that guidance with some care; rather than reassuring me, it has filled me with even deeper foreboding. It states:
Their purpose is not to create legal obligations or restrictions on any party; rather, they will set the ground rules for administrative co-operation and exchange of information.
Setting "the ground rules" sounds wonderful—as if the Government are setting the rules by which the game will be played. However, when we asked previously what the concordats were for, we were led to believe that they were not for administrative co-operation and exchange of information but for important matters like deciding how much money the Welsh assembly will get and how the voice of Wales will be heard in the European Council of Ministers. Those are not administrative, co-operative matters or exchanges of information; they are matters of fundamental importance to Wales and to this Parliament.
The next paragraph says:
Concordats are not necessarily the only way to regulate these relationships in future.
Good, say I—something better. Not at all. We are told:
Other, less formal, arrangements will be appropriate in many cases, and in others there will be no need for any standing arrangement at all.
We suddenly begin to see something that is highly alien to our democratic principles: the introduction of what have become known in America as "Executive agreements"—agreements not between legislatures, Parliaments or countries but between Administrations so that they can bypass democratic procedures.
The concordats will be used for exchange of information and
arrangements for liaison on EU and international matters".
By what right does a concordat that does not come before this House decide on matters of liaison within the European Union, or on other international matters? Are not those of concern to this House and to elected Members of the Welsh Assembly? How can they be dealt with on the same basis as the concordats?
The document also refers to "any financial arrangements", but are those the financial arrangements under clause 80? Do they relate to the Barnett formula? Will they all now be regulated by non-statutory, non-legally enforceable documents, which will become known as concordats?
Those are the reasons why, earlier in our proceedings, I tried to explore what the concordats were about. The document tells us firmly that they are non-statutory and not intended to be legally enforceable. That is interesting, because it gives rise to all sorts of questions. The document also says that they are not intended to impose duties and liabilities.
Will my right hon. Friend speculate, given his knowledge of these matters, whether the statement that the concordats are not intended to be legally enforceable is of the slightest legal interest? Does he agree that, over time, the courts might come to think that they are justiciable and perhaps even enforceable?
I am grateful to my hon. Friend for asking that, because it is one of the questions that I was going to ask the Secretary of State to respond to when he replies to the debate. Without having seen a concordat, 1 cannot take a view, but it might well found an action for judicial review, for instance. In a sense, that would then bring into question whether it was creating obligations or liabilities and whether it might at some stage become legally enforceable.
These concordats have no status whatever. We are surprised that, although they will deal with major matters, they will normally be signed by a senior official. Only if they are politically sensitive will they be signed by Ministers and Assembly Secretaries. Thus, they will not be regarded as sufficiently important for a Minister to be involved in their negotiation and signing, but will be signed by officials within Departments.
We need to ask a number of fundamental questions about the concordats. First, what status will they have? I hope that the Secretary of State will give us an answer for the first time. Are they like Executive agreements in the United States, which are deliberate ways of bypassing the legislature, and thus matters of considerable constitutional interest and challenge in the United States? If they are, we should be told. Secondly, will they found actions for judicial review? Has the Secretary of State taken advice on whether he is correct in saying that they are not intended to create or impose duties and liabilities? Is he secure in his expectation that that will not happen?
Who will decide who signs the concordats? What are the criteria for deciding whether they will be signed by a Minister or an official? That may appear a semantic question, but it is not. We know that Ministers come and go, and that Governments come and go, but that officials, by their nature, tend to stay. We need to know whether a concordat signed by a Minister will end with the departure of that Minister, and whether a concordat signed by a Minister on behalf of a Government will end with the departure of that Government. It seems that a concordat signed by an official might last, because the officials will still be there, and the interests in which they signed will remain. That will create not just one category of concordat, but a series of categories.
Has not an early example of what might be described as a concordat in British history come to have considerable significance over time, although it is rather different from some of the examples that my right hon. Friend is describing? I refer to magna carta.
I thank my hon. Friend for introducing the subject of that particular concordat, although I think that I could give him examples of some rather more modern and ecclesiastical concordats. At least we knew the basis of those concordats, and the way in which they could ultimately be enforced in constitutional terms. What we have here are documents—I call them documents, but I do not even know whether they will be documents. In any event, they will be constitutional eccentricities which, at present, have no status, and no basis that we know of on which they can be enforced.
Are the concordats unilaterally breachable? If one side decides that a concordat is no longer a concordat, will that be the end of the matter? If so, is any remedy available to the other side? Will there be financial implications? I understand that the concordats could well be used to decide matters such as the resourcing of the assembly under clause 80 or, indeed, the workings of the Barnett formula. If they have financial implications, will they be open to inspection by the Public Accounts Committee of the House of Commons—and, if so, on what basis, if they are not born of the House of Commons?
Let us come to the nub of the issue. How can someone who is not a representative of the United Kingdom be delegated, on the basis of an informal agreement, as a representative of the United Kingdom in the Council of Ministers? We are told that that will be one of the purposes of the concordats. How can that be done on the basis of, if necessary, no more than the signature of an official?
Will there be two types of concordat? Will there be concordats that are essentially between officials and, therefore, theoretically, under the terms of the Bill, between members of the same civil service, and concordats which, being between separate Administrations, constitute a very different animal? That, too, will arise in relation to Europe. I understand that concordats will be drawn up between two Administrations in order to allow one to be represented on the delegation of the other, which will be based on the advice of civil servants common to both—civil servants who, I believe, will move between their offices in Cardiff and the Cabinet Office in London in order to formulate the policy that will be taken to the Council of Ministers.
A series of strange, sinister beings called concordats are being introduced— [Horn. MEMBERS: "Sinister?"] Hon. Members may smile, but it takes only one mouse to begin to chew away the rope that holds a building together. I see the beginnings of a deliberate attempt to bypass the House of Commons increasingly. We are starting with a few small concordats; five years later, we shall find that more and more is being done by concordat.
In the absence of answers, there is only one way in which the House can continue to control what is happening here: requiring all concordats to being brought to both Houses in draft form for approval. If that is done, we shall have a chance of protecting the interests of the House.
New clause 9, which is grouped with the right hon. Gentleman's new clause, would have the same effect, so I share the right hon. Gentleman's objective. However, I intend to employ a different argument because I thought that he rather over-egged his argument.
To return to my Bagehot, two buckles will link the assembly to Whitehall and Westminster. One is the Secretary of State and the other is the concordats. Those are the two instruments which will be used to achieve a relationship. They will deal with—if I can borrow a phrase from a different situation—the three areas of cohabitation that will have to be worked out.
I am referring to the cohabitation between the Secretary of State and the assembly; the cohabitation between the Secretary of State and Whitehall and the powers that he might have; and the cohabitation between the assembly and Whitehall. The concordats deal mainly with the third category of cohabitation—the relationship between assembly officials and Whitehall officials.
If the right hon. Member for Devizes (Mr. Ancram) had bothered to read column 745 of Hansard on 2 March, he would have seen that my right hon. Friend the Secretary of State spelled out rather well the reason why we have to have concordats. He described a series of relationships between Welsh Office officials and Whitehall officials on a host of issues. Those officials regularly meet in a working relationship within a common political structure.
I was rather surprised that my right hon. Friend described the relationship as harmonious. If it is, it has changed a great deal since my time in office 20 years ago, when there was a great deal of tension. Quite often, Whitehall would either try to pull a fast one or simply ignore the Welsh Office. I gather that everything is now sweetness, light and harmony, although I find it a little difficult to believe.
My right hon. Friend rightly pointed out that there is a meaningful basis to the relationship—that the officials work in a common political administrative-executive structure. When Welsh Office officials go to Whitehall, they work under the same rules, with the same common purpose, and bound by the same set of relationships. Therefore, many of the points made by the right hon. Member for Devizes were off target.
The fundamental issue is not that there is something sinister about the relationship or that we do not need concordats. I understand why we need them—to establish the sort of relationships that exist now and which were well described by my right hon. Friend on 2 March. The problem is that we are in a wholly different political environment with different sets of loyalties. The officials coming to Whitehall from the Welsh Office or the assembly will not have a common political administrative-executive allegiance; they will be separate people with separate relationships and separate loyalties—not to a Minister who is part of the collective system of Westminster, Whitehall and Cabinet, but to the First Secretary and other Secretaries who will have different priorities and different political instincts.
In theory, a civil servant could be on both ends of a concordat, acting in his two capacities. Does the hon. Gentleman envisage that civil servant acting for two bodies which could have a contractual or legal relationship?
It is not a legal relationship at present; it is an administrative-executive arrangement between two sets of officials, but within a common system. I was saying that one of the questions that we need to ask is what happens when we break that up and the officials turn up in Whitehall from the assembly, with different political masters, different priorities and different remits.
I tried to read the document that, according to my right hon. Friend on 2 March,
could not be classified as a ripping good yarn, but … is worth reading" — [Official Report, 2 March 1998; Vol. 307, c. 745.]
The right hon. Member for Devizes quoted from it earlier—but I did not find that it answered the one basic question that I would like answered.
Let me make my point first. The hon. Gentleman can intervene later.
The best way to get through all the constitutional theorising is to imagine a situation, to have a case study—or perhaps a scenario; that word would please the hon. Member for Montgomeryshire (Mr. Öpik). Let us imagine a scenario in which assembly officials turn up at the Ministry of Agriculture, Fisheries and Food to discuss one of the sensitive issues concerning animal welfare, meat on the bone or something similar.
At the moment, such subjects may be all hush-hush, with confidential discussions taking place within MAFF about what it intends to do about an issue of considerable difficulty—meat hygiene, for example. Yet when the assembly officials turn up at the meeting, they may find that the thinking within MAFF is political dynamite for Welsh hillside farmers.
What do the officials do? At present, they would report back to their Ministers, and those Ministers would meet. That would all take place within a common system. What would a concordat say about such a situation? Having been up to Whitehall, the assembly officials will go back to base and report.
The first question is: to whom will they report? Do they say to the First Secretary, "We have to tell you that what we heard in the MAFF discussions is political dynamite"? What is the status of that information? How is to be transmitted to the assembly as a whole, or to the subject Committee dealing with the issue?
That is a central question about how well the buckle, or hyphen, representing the concord linking the two will be tested. I have not found out from anything that my right hon. Friend the Secretary of State has said, delivered to the Library or explained to us in any shape or form, how we would deal with such a situation.
My scenario is not fanciful. Such things happened in my day, and I am sure they are happening now. Priorities, opinions, emphasis in policy and decision making—at operational level as well as at the grand strategic level—reveal lots of potential tensions between the needs and priorities of the assembly and its officials, and those of Whitehall and its Ministers.
Of course, the Secretary of State for Wales will have to play a vital part in bridging the gap. Sadly, I share with the right hon. Member for Devizes the idea that there are two things about which we know little more than we did at the beginning of our debates. The first is the meaningful content of the concordats dealing with such issues.
Secondly, the shadowiest figure in the Bill is the Secretary of State for Wales after devolution— [Laughter.] I mean a Secretary of State, not necessarily the present Secretary of State. The last thing that I would describe my right hon. Friend as is a shadow.
He may cast a shadow over some of us occasionally.
What I have described are two vital elements, which even after all this time we have not managed to flush out. Our new clause, like that of the right hon. Member for Devizes, says that, if we are to make devolution work, we at Westminster must have a profound interest in ensuring that the two hyphens, or buckles, hold, and can sustain the pressure.
I hope that, even if my right hon. Friend does not concede on our new clauses, he will come up with something more in the way of a substantive view. Before the Bill passes through both Houses of Parliament, we should have a better understanding of how concordats will work in the situations that I have described.
New clauses 10 and 11 are about the publication of concordats and amendments to them. I listened with great care to the case advanced by the right hon. Member for Devizes (Mr. Ancram) and to that put forward by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands).
I shall give another reason why we think greater thought should be given to the way in which the concordats are to operate. I listened with care to the scenario postulated by the hon. Member for Merthyr Tydfil and Rhymney about Ministry of Agriculture, Fisheries and Food officials and beef on the bone, but I should have thought that the Welsh assembly could decide differently. I say that because such a measure would have to be introduced through secondary legislation. The regulation banning beef on the bone was, I understand, introduced by statutory instrument. It would have been possible for the Welsh assembly not to introduce it.
One of the great unanswered questions, which I raised earlier, is to what extent MAFF functions with regard to beef on the bone will be devolved to a Welsh assembly and, if not, what relationship the Secretary of State will have with Whitehall and the assembly on that matter. I am by no means clear whether the Bill and secondary legislation allow what the hon. Gentleman suggests.
That is my reading of the Bill. If it is not correct, I fail to understand what the assembly's powers in secondary legislation will be. The Secretary of State might wish to settle the argument. A scenario or case study is the best way in which to test the Government's position on concordats. I want to examine the Secretary of State's written answer of 27 February to the hon. Member for Clwyd, West (Mr. Thomas) on the common provisions in concordats. The right hon. Member for Devizes mentioned it in the context of arrangements for liaison on EU and international matters.
In cases such as this, there will have to be a concordat not only between the Welsh assembly and a Whitehall Department, but between the Welsh assembly and two Whitehall Departments. That is important. For example, in regard to the EU, for the relationship to work, there would have to be a concordat between the Welsh assembly and the Department of Trade and Industry and the Foreign Office.
Negotiations on the future of structural funds would fall within the purview of the DTI. Currently, the DTI is the lead Department in such matters. It is the common position put forward by the DTI in the Council of Ministers that carries the day. The Welsh Office has an opportunity to put forward its case, but in the Council of Ministers the vote is delivered by the President of the Board of Trade or another DTI Minister.
The hon. Gentleman talks about a concordat in relation to representation in Europe. He keeps on talking about a concordat between the assembly and one or two Whitehall Departments, but there is nothing to suggest that the assembly will have any more say than the House. The concordat will be drawn up between either officials or the First Secretary and, presumably, the Minister in the Department. My argument is that there is no democratic control or accountability. That is what I am trying to make clear, and I hope that the hon. Gentleman will support me in that.
The right hon. Gentleman has already said that. It would be helpful if the Secretary of State would tell us in what circumstances concordats would be signed between officials and between politicians. For example, the reply to the hon. Member for Clwyd, West says that there will be circumstances in which they will be signed by Ministers and Assembly Secretaries. It would be helpful for us to know what those circumstances might be.
I do not follow the point made by the hon. Member for West Dorset (Mr. Letwin). The written answer specifies that certain concordats will be signed between officials and certain concordats will be signed between Ministers and the assembly. The point being made is that that need not happen, but circumstances are being envisagedßžalthough they are not legally binding.
No. I need to make some progress.
Will there be a concordat on European matters between the Department of Trade and Industry and the assembly on issues such as structural funds, but a concordat between the Foreign Office and the assembly on representation of the assembly in the UKREP? Let us say for the sake of argument that a civil servant from the assembly is seconded to the permanent representation in Brussels. That is a function decided by the Foreign Office. Would there need to be a separate concordat on that arrangement? These are matters that need to be properly clarified.
I did not like the use of the word "sinister" by the right hon. Member for Devizes because it is provided that the details of concordats should be published. The difficulty as I see it is that in the vast majority of cases there is no opportunity for anyone other than officials to decide the contents of the concordat.
Let us assume that there is a concordat between an assembly official and a DTI official about the relationship between the assembly and the Council of Ministers. How will the assembly make it clear that it wishes to have better representation in Europe if the officials have denied that in the official concordat? At what stage would, say, the First Secretary of the assembly be able to discuss with a Minister in the DTI the extent of that concordat? Who would be in a position to amend the concordat if the relationship was obviously not working?
That is one reason why we believe that there should be some way in which amendments to the concordat can be discussed in the assembly. If a concordat signed between officials obviously is not workingßžfor example, the discussion of European mattersßžand an amendment is proposed, it is vital that the assembly's voice is heard before the amendment is finally agreed.
I do not always share the Secretary of State's confidence about the future relationship between the assembly and Whitehall. I readily agreeßžhe has often made the point-that the relationship is good at present. It is founded on mutual trust. I do not think that that will always be the case. I shall give the Secretary of State an example. Let us assumethat during the right hon. Gentleman's term of office a concordat is signed on sensitive European matters. Let us assume that, two general elections down the line, the right hon. Member for Wokingham (Mr. Redwood) becomes President of the Board of Trade in a Conservative Government. Let us assume that he wants to tear up the concordat, as he wanted to do when he was Secretary of State for Wales. Let us be blunt about it; he did not want Wales to have any relationship with the European Union. He wanted all the negotiations to be handled here in Westminster. He did not want Wales to have any influence in Europe. If he tears up the concordat, what happens?
The Secretary of State needs to reassure those of us who generally support the move towards better relationships between Departments about what would happen in that event. We need to know that there would be some system to enable the assembly to continue with the arrangements that had been in place under a previous Government.
New clause 11 would authorise the assembly to confirm or reject a decision on a concordat made on its behalf. To make the relationship balanced, surely this House should have the same authority. I would be interested to hear the hon. Gentleman's justification for suggesting that the assembly should have a greater power of scrutiny than the House.
I am not here to make that caseßžbut the right hon. Member for Devizes has. He made a strong case for Westminster having the opportunity to consider the contents of the concordat, but he failed to respond to the argument that the assembly should have a similar power. Taken together, the new clauses complete the jigsaw.
The difficulty is that, because the concordats have not been drawn up yet, we are in the dark. I am sure that the Secretary of State is now aware, if he was not before, that the situation needs to be clarified. We need to be satisfied that the assembly will have real clout in its important relationships, such as that with the European Union.
I hope that my right hon. Friend the Secretary of State will be able to give the hon. Member for Ynys Mon (Mr. Jones) the reassurance that he seeks. I too read the paper that my right hon. Friend kindly and rightly placed in the Library. I do not want to seem churlish, but it does not reassure me completely.
I feel some sympathy for the person who wrote the paper because he did not know what was in the draftsman's mindßžand it is always difficult to draft something when it is not clear in one's own mind. I understand his problems. At least the paper begins by saying that, basically, the aim of the concordats is
to preserve the good working relationships which currently exist
between the Welsh Office and other Government Departments. Throughout its three pages, the hope is constantly expressedßžexplicitly or implicitlyßžthat those good working relationships will continue.
Of course, as my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) pointed out, we are talking about a different situationßža different form of cohabitation. The good working relationships that now apparently exist between the Welsh Office and other Whitehall Departments need not necessarily exist between Whitehall Departments and a completely different animalßžthe National Assembly for Walesßžfor the simple reason that the assembly will not be a Whitehall Department.
In the main, Whitehall Departments have to live together. They may fight and quarrel but, at the end of the day, they have to reach an agreement, not necessarily because they want to but because they live in the same little pond and the same little village. That is not the case with the National Assembly for Wales; it will be from outside, from the next block.
The document has all the hallmarks of a demandeur, if I can use a French word.
My hon. Friend, who is an expert in that languageßžas we heard earlier todayßžsays that I am right. It is the kind of word that one hears in the Council of Ministers. To be accused of being a demandeur is a bad thing, and one does not get what one demands. The problem is that the National Assembly for Wales will be a demandeur, outside the magic circle but wanting to come in, perhaps wanting to be the chairman of the euro X committee. It will be told by those dreadful French that it cannot, because it not part of the whole magical set-up.
Right through the paper runs the demand, "Please, we want the same good working relationships." We are told that the concordat does notßžthe word "not" appears in strong typefaceßžcreate legal obligations. I suppose it does not, but I do not know.
May I ask the right hon. Gentleman, who is an eminent lawyer, his opinion of the idea that the concordats have no legal standing? If something goes wrong, surely the aggrieved personßžperhaps the farmer in one case or the industrialist in anotherßžwill go to law and the concordat will very rapidly acquire legal standing.
Does the right hon. Gentleman agree, from the face of the Bill and without his being any kind of lawyer, that it is evident that the subject of a concordat could become a devolution issue and that that could lead to its being adjudicated by the Judicial Committee?
Yes, indeedßžthey could all end up in the Judicial Committee, and lawyers, who love judicial review and have made a lot of money out of it over the past 20 years, will press the case and learned articles will be written saying that of course the matter is within the ambit of judicial review. That is the nature of things.
We are told that there should be
co-ordination … to take account of the programmes for implementing new legislationߞ
in other words, another cry from the national assembly: "Please, please, Whitehall, let us in on implementing new legislation. Don't freeze us out, because we need to be there." Whether Whitehall will listen is another matter: if it does not need to listen or is not forced to listen, it will not listen. Again there is the real problem of how the assembly gets into the legislative process of Whitehall, with which I foresee great difficulties.
We are told that the concordats should deal with
shared interests in matters such as EU business.
We have heard that time and again and we heard it tonight from the hon. Member for Ynys Môn. The problem as I understand it is that the lead Department in EU business, be it the Department of Trade and Industry, the Ministry of Agriculture, Fisheries and Food or the Department of the Environment, Transport and the Regions, being a UK Department, will also be the Department for England.
We shall have a curious situation: the President of the Board of Trade will be not only the lead Minister for the United Kingdom, but the Minister for England. The same is true of the Minister of Agriculture, Fisheries and Food, who will be the lead Minister for the United Kingdom and the Minister of Agriculture for England. There will be no Minister for Wales, except for the First Secretary of the National Assembly, so there is bound to be a conflict of interest. That will create difficulties, so I can understand the need for some sort of concordat; but how we are to go about it, I do not know.
We are told that, despite having the concordat and the good working relationship, the concordat must
avoid constraining the Assembly or Whitehall Departments in their actions within their fields of competence.
We need a concordat, but it must not constrain anyone.
Reading new clause 9, which stands in the right hon. Gentleman's name among others, it appears to me that it is a one-way street, because once the Order in Council has been made at Westminster, Buckingham palace, or wherever, the assembly will not be able to get out of it.
To some extent, I am arguing that it is a one-way street. On the one hand there will be a working relationship but, on the other and according to the document, that relationship
must not constrain … Whitehall Departments",
and, of course, Whitehall will not want to be constrained. Why should it be constrained by the little kid in the next street? Why should Whitehall be constrained by the Welsh assembly? It will have no interest in being constrained by the Welsh assembly; it will carry on in its own way.
We are moving back halfway to the position that existed before there was a Welsh Office. That is a consequence of devolution and I do not criticise it. When there was no Welsh Office, Welsh matters were dealt with in Whitehall Departments. Then, because of the pressure, the Welsh Office was set up. Gradually it built up, and nowßževentuallyßžit has a good working relationship with other Whitehall Departments. At the start, it was difficult.
That is an interesting issue. I became a civil servant at the Welsh Office within 12 or 14 months of its being set up. Slightly older civil servants have described to me the change in relationships that took place on the setting up of the Welsh Office as a separate Cabinet Department; that change in relationships was not unlike what is being talked of now. There was a step change in the relationship and the demandeur relationship that my right hon. Friend is describing was a feature of what happened to the Welsh Office when it became a separate Department of state.
I remember that, when we were trying to demand that the Royal Mint be moved to Llantrisant, that the Driver and Vehicle Licensing Centre be moved to Swansea and that a section of the Department of Trade and Industry be moved to Cardiff, all at the same time, we could not work out whether it was a good or a bad thing to aim at all three. In the end, we aimed at all three and got all three. That was an example of a new Department of State being able to do a great deal of demanding all at the same time.
Yes, indeed. It became, and remains, a mature Department of State. In so doing, it ceased to be a demandeur and became part of the set-up.
However, now we are moving backwards again. We are dismantling that situation and must almost start againßžor at least move halfway back to where we were before 1964, when the Welsh Office was set up. Again we find the Welsh assembly seeking somehow to obtain an agreement to constrain the other side. Whitehall Departments do not need the Welsh assembly.
The Treasury will consider that, once it has given the Welsh assembly £7 billion to spend on health and education, for example, that is the end of the matter: Whitehall will have performed its obligation. Whitehall will ask, "What on earth is all this about legislation? The Welsh are being given £7 billion and they should be grateful. Go away, spend it and come back next year, when they will probably get another £7 billion plus whatever the rate of inflation might be. Why should they return to Whitehall, demanding this, demanding that?"
According to the hon. Member for Ynys Mon, two agreements are being demanded with one Department. That is unrealistic and reveals a lack of understanding of the realpolitik in government and the bargaining that takes place.
We are told, in paragraph 5 of the document:
The aim on both sides should … be 'no surprises'.
There should be no surprises on the part of the National Assembly for Wales—we would not wish to be the subject of surprises from Big Brother in Whitehall—but why should Big Brother in Whitehall worry about surprises coming from the little National Assembly for Wales? The aim of "no surprises" is to put constraints on Whitehall Departments, so that they do not surprise us.
We are not equal partners in the agreement, whether or not there is an intention to create legal relations. We are not equal parties to the contract, and that is the real problem. Whitehall will not be malicious; Whitehall will not need to look at us, because Whitehall will have paid us the money, having written the cheque, thinking, "Those Welsh—they can go off and do their own thing." That is the worry and the reality.
I conclude with this. We are told that there is to be consultation with United Kingdom-Great Britain public bodies. We are told that there will be consultation about
the exercise of Ministerial functions relating to such bodies, such as giving directions or approving corporate plans".
There will need to be separate memorandums of understanding for each body. Which bodies are they? Perhaps my right hon. Friend the Secretary of State will give us a list of those bodies.
There may be concordats on
operational agency arrangements"—
we are almost back to local government again—
whereby matters are administered by the UK Government on behalf of the National Assembly on an agency basis or vice versa.
What agency matters will be imposed or agreed by the National Assembly on behalf of UK Government or vice versa? May we have a few examples?
There may be a concordat on
arrangements for resolving disagreements about any matters related to the concordat"—
another grand concordat to judge the little concordats. Is that realistic? It would take a long time to draft.
We are told that there will be an official committee, with a rotating chairman—going round and round—to report at intervals to Assembly Secretaries and Ministers on the operation of the concordat. Will there be a grand weekend conference with the rotating chairman? "How is it working now? How does the assembly like these concordats?" That is entirely and completely unrealistic within the reality and the brutishness, sometimes, of government. We are told that there will be signing at senior official level, and only occasionally at ministerial level.
I do not criticise my right hon. Friend the Secretary of State. Obviously he has done his best with the document. I am sure that no better could have been done with it, because the relationship is unstable, unequal and unrealistic. Yes, we have devolution. Yes, most people in Wales have wanted it. However, there are consequences.
As lawyers would say, there are burdens and benefits. Being frozen out of Whitehall or being in a halfway house is one of the burdens. I hope that we can find some benefits.
I thank my hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) for his comments. I am grateful that he took the trouble to read the report of our debate on 2 March. It was a full and substantive debate, and I remind the House that many of the questions that we have been debating today were raised on 2 March, and that full answers were given. I am grateful to my hon. Friend for acknowledging that. I shall reply to the points that have been made on the three clauses, and then I shall deal with any other questions that are raised.
Each of the new clauses refers to concordats, and seeks to put them on a statutory footing. Certain procedural requirements are set out that would apply to them. We have made it clear consistently since the White Paper was published, and in a statement of principles that I published on 27 February, that it will be important to have clear mutual understandings about the working relationship between the assembly and Government Departments. We have been equally clear that it would be unhelpful to turn these into law. That is why the concordats we propose are not intended to be statutory.
Our aim is to preserve the good working relationships that my Department currently has with other Whitehall Departments, so that the business of governance in Wales continues to be conducted smoothly and efficiently. Concordats will set the framework for administrative co-operation and exchange of information dealing with the current processes and the main features of good working relationships.
Concordats already exist between the Welsh Office and local government. These are not legal agreements or agreements that are subject to the affirmative procedure. They are agreements entered into between myself as Secretary of State and the 22 unitary authorities in Wales. They set out the basis on which we consult, respect one another and ensure that the good business of government in Wales is conducted. That is an example of how concordats will work in practice. Suggestions that practical working arrangements should have a legal basis or be subject to procedures of the House are fanciful.
I shall not give way. The right hon. Gentleman had the opportunity to put his points at length, and I want to reply to them. If there is sufficient time, he can come back at me.
It might assist the House if I give some specific examples of matters that I expect to be covered in concordats. The ground to be covered in each document will need to be settled by the assembly and the Government Department concerned. To answer the question of the hon. Member for Ynys Môn (Mr. Jones), the documents will be signed by the assembly. If a concordat related to political matters, an Assembly Secretary would sign it, together with a Minister. In other circumstances, it may be that, if the concordat related to working arrangements between civil servants, it would be signed at that level.
The hon. Member for Ynys Môn is correct in assuming that there will be different concordats relating, to take the example he gave, to the Department of Trade and Industry on the one hand and the Foreign Office on the other. Those concordats will have to be mutually compatible. However, different concordats will be entered into with the objective of ensuring that matters such as Welsh representations to the European Union are conducted in a way that minimises friction and ensures that the voice of Wales is heard properly. That is an example of how the concordats will work.
I understand that some hon. Members, such as the right hon. Member for Devizes, can think only in terms of conflict. It just goes to show what an outdated mindset the Conservative party has. We are entering an era of new politics, when it is possible to co-operate and put aside party political differences in the interests of better government. When the right hon. Gentleman understands that, he will be in a better position to argue his case at the Dispatch Box.
Concordats would cover consultation arrangements in relation to proposals for legislation and Executive action, such as the exchange of information, including policy papers, analysis and statistics; and joint working, including participation in working groups, official committees and so on. They are two-way processes. My hon. Friend the Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) raised the question of confidential information. When a party requires confidentiality, that will have to be written into the concordat and respected.
Concordats will need to address those issues in the context not only of domestic policy and legislation but of the European Union. The assembly's role in policy discussions, both in the United Kingdom and in Europe, on matters within its field of responsibility will therefore be a central feature of relevant concordats. In line with current arrangements, the concordats will provide for matters such as access to relevant papers, attendance at interdepartmental meetings, consultation with the assembly about the development of the United Kingdom negotiating line, and participation in United Kingdom delegations to Brussels. They are precisely the points that were raised during the debate.
New clause 10 would require concordats to be published within a week of having been agreed. The assembly's concordats will be published documents, but I do not believe that it is necessary or appropriate for the legislation to specify the timing of publication. I informed the right hon. Gentleman in a written answer on 10 March that any draft concordats produced by my Department in preparation for the assembly will be published subject to the provisos mentioned in the Government's White Paper on freedom of information. I do not expect the drafts to be ready until well after the Bill has completed its passage through Parliament.
That underlines my point that concordats are practical documents that deal with working relationships rather than matters that need to feature on the face of legislation. The terms of concordats will be agreed between the assembly and Government Departments after the assembly has been elected. As new clause 5 suggests, there is no case for requiring these documents about working arrangements to be subject to prior approval by both Houses of Parliament.
New clause 9 suggests that it is necessary to have an order in council providing for the assembly and Government Departments to agree concordats between them. If the Government thought that the assembly needed any specific power to enter into concordats, we would have included that in the Bill. I am afraid that I cannot offer my hon. Friend any encouragement regarding new clause 9. New clause 11 would require all amendments to concordats to be agreed by a majority vote at a meeting of the assembly. That unnecessarily threatens the discretion of the assembly to decide how it wishes to approve them.
This afternoon, we have seen a synthetic exercise in indignation from the right hon. Member for Devizes. He realises that he can do little to prevent the passage of this legislation into law—he is simply looking for an excuse to call a Division.
The Secretary of State has succeeded in creating a fog of complete confusion about the nature of concordats. More ridiculous even than his other comments was his suggestion that he already has a concordat with local government in Wales. What sort of concordat did he have with the Cardiff county council regarding the siting of the assembly? He had no such concordat, because, for an agreement to exist, it must be based upon a common source of authority.
The description of a concordat says that it should set the ground rules. It states that there will be arrangements for resolving disagreements, but that they are not intended to be legally binding. When is an agreement an agreement? An agreement is not an agreement unless the parties have some recourse to an independent arbiter who will decide what that agreement should be.
No, I am sorry, I only have one minute.
Is the assembly or the assembly Executive a legal personality separate from the Westminster Parliament and the Whitehall Government? Even though they have a common civil service, they will be separate legal personalities, because they will have separate masters and separate agendas. The agreements, which will be published, will be the subject of disputes, and are bound to finish up in the Judicial Committee of the Privy Council. They will be used as evidence of a contract between those two separate legal personalities, and will be the governing arrangements between two separate Administrations.
If the Secretary of State is confident that the agreements will not be legally enforceable, he should give the House that guarantee.
|Division No. 231]||[10 pm|
|Amess, David||Atkinson, Peter (Hexham)|
|Ancram, Rt Hon Michael||Baldry, Tony|
|Arbuthnot, James||Bercow, John|
|Atkinson, David (Bour'mth E)||Beresford, Sir Paul|
|Blunt, Crispin||Lewis, Dr Julian (New Forest E)|
|Body, Sir Richard||Lilley, Rt Hon Peter|
|Boswell, Tim||Uoyd, Rt Hon Sir Peter (Fareham)|
|Bottomley, Peter (Worthing W)||Loughton, Tim|
|Bottomley, Rt Hon Mrs Virginia||Luff, Peter|
|Brazier, Julian||Lyell, Rt Hon Sir Nicholas|
|Brooke, Rt Hon Peter||McIntosh, Miss Anne|
|Browning, Mrs Angela||MacKay, Andrew|
|Bruce, Ian (S Dorset)||Maclean, Rt Hon David|
|Burns, Simon||McLoughlin, Patrick|
|Butterfill, John||Malins, Humfrey|
|Cash, William||Maples, John|
|Chope, Christopher||Mates, Michael|
|Clappison, James||Mawhinney, Rt Hon Sir Brian|
|Clark, Rt Hon Alan (Kensington)||May, Mrs Theresa|
|Clifton-Brown, Geoffrey||Moss, Malcolm|
|Collins, Tim||Norman, Archie|
|Colvin, Michael||Page, Richard|
|Cormack, Sir Patrick||Paice, James|
|Cran, James||Paterson, Owen|
|Curry, Rt Hon David||Pickles, Eric|
|Davies, Quentin (Grantham)||Prior, David|
|Davis, Rt Hon David (Haltemprice)||Redwood, Rt Hon John|
|Dorreil, Rt Hon Stephen||Robathan, Andrew|
|Duncan Smith, Iain||Robertson, Laurence (Tewk'b'ry)|
|Emery, Rt Hon Sir Peter||Rowe, Andrew (Faversham)|
|Evans, Nigel||Ruffley, David|
|Faber, David||St Aubyn, Nick|
|Fabricant, Michael||Sayeed, Jonathan|
|Fallon, Michael||Shephard, Rt Hon Mrs Gillian|
|Flight, Howard||Simpson, Keith (Mid-Norfolk)|
|Forth, Rt Hon Eric||Soames, Nicholas|
|Fox, Dr LJam||Spelman, Mrs Caroline|
|Fraser, Christopher||Spicer, Sir Michael|
|Gibb, Nick||Spring, Richard|
|Gill, Christopher||Stanley, Rt Hon Sir John|
|Gillan, Mrs Cheryl||Steen, Anthony|
|Gorman, Mrs Teresa||Streeter, Gary|
|Gray, James||Swayne, Desmond|
|Green, Damian||Syms, Robert|
|Greenway, John||Tapsell, Sir Peter|
|Grieve, Dominic||Taylor, John M (Solihull)|
|Hamilton, Rt Hon Sir Archie||Taylor, Sir Teddy|
|Hammond, Philip||Townend, John|
|Hawkins, Nick||Tredinnick, David|
|Hayes, John||Trend, Michael|
|Heald, Oliver||Tyrie, Andrew|
|Heathcoat-Amory, Rt Hon David||Viggers, Peter|
|Horam, John||Walter, Robert|
|Howarth, Gerald (Aldershot)||Wardle, Charles|
|Hunter, Andrew||Wells, Bowen|
|Jack, Rt Hon Michael||Whitney, Sir Raymond|
|Jackson, Robert (Wantage)||Whittingdale, John|
|Jenkin, Bernard||Widdecombe, Rt Hon Miss Ann|
|Johnson Smith,||Willetts, David|
|Rt Hon Sir Geoffrey||Winterton, Mrs Ann (Congleton)|
|Key, Robert||Winterton, Nicholas (Macclesfield)|
|Kirkbride, Miss Julie||Yeo, Tim|
|Laing, Mrs Eleanor||Young, Rt Hon Sir George|
|Lait, Mrs Jacqui|
|Lansley, Andrew||Tellers for the Ayes:|
|Leigh, Edward||Mr. Stephen Day and Mr. Nigel Waterson.|
|Ainger, Nick||Bayley, Hugh|
|Allan, Richard||Beith, Rt Hon A J|
|Allen, Graham||Bell, Martin (Tatton)|
|Anderson, Janet (Rossendale)||Bell, Stuart (Middlesbrough)|
|Armstrong, Ms Hilary||Benn, Rt Hon Tony|
|Ashton, Joe||Bennett, Andrew F|
|Atherton, Ms Candy||Benton, Joe|
|Baker, Norman||Bermingham, Gerald|
|Barnes, Harry||Berry, Roger|
|Barron, Kevin||Best, Harold|
|Battle, John||Blackman, Liz|
|Blears, Ms Hazel||Flynn, Paul|
|Blizzard, Bob||Foster, Rt Hon Derek|
|Borrow, David||Foster, Don (Bath)|
|Bradley, Peter (The Wrekin)||Foster, Michael J (Worcester)|
|Brinton, Mrs Helen||Foulkes, George|
|Brown, Rt Hon Nick (Newcastle E)||Fyfe, Maria|
|Brown, Russell (Dumfries)||Galloway, George|
|Browne, Desmond||Gapes, Mike|
|Buck, Ms Karen||George, Andrew (St Ives)|
|Burden, Richard||Gibson, Dr Ian|
|Burgon, Colin||Gilroy, Mrs Linda|
|Burnett, John||Godman, Norman A|
|Caborn, Richard||Goggins, Paul|
|Campbell, Alan (Tynemouth)||Golding, Mrs Llin|
|Campbell, Mrs Anne (C'bridge)||Grant, Bernie|
|Campbell, Menzies (NE Fife)||Griffiths, Jane (Reading E)|
|Campbell-Savours, Dale||Griffiths, Win (Bridgend)|
|Canavan, Dennis||Grocott, Bruce|
|Caplin, Ivor||Grogan, John|
|Casale, Roger||Gunnell, John|
|Caton, Martin||Hain, Peter|
|Chaytor, David||Hall, Mike (Weaver Vale)|
|Chisholm, Malcolm||Hanson, David|
|Church, Ms Judith||Harman, Rt Hon Ms Harriet|
|Clapham, Michael||Harris, Dr Evan|
|Clark, Rt Hon Dr David (S Shields)||Heal, Mrs Sylvia|
|Clark, Dr Lynda||Healey, John|
|(Edinburgh Pentlands)||Henderson, Ivan (Harwich)|
|Clarke, Rt Hon Tom (Coatbridge)||Hepburn, Stephen|
|Clelland, David||Heppell, John|
|Clwyd, Ann||Hewitt, Ms Patricia|
|Coaker, Vernon||Hill, Keith|
|Coffey, Ms Ann||Hinchliffe, David|
|Coleman, Iain||Hodge, Ms Margaret|
|Colman, Tony||Hoey, Kate|
|Connarty, Michael||Home Robertson, John|
|Cook, Frank (Stockton N)||Hoon, Geoffrey|
|Cooper, Yvette||Hope, Phil|
|Corbett, Robin||Hopkins, Kelvin|
|Corbyn, Jeremy||Howarth, George (Knowsley N)|
|Corston, Ms Jean||Howells, Dr Kim|
|Cousins, Jim||Hoyle, Lindsay|
|Cryer, John (Hornchurch)||Hughes, Ms Beverley (Stretford)|
|Cummings, John||Hughes, Kevin (Doncaster N)|
|Cunliffe, Lawrence||Hughes, Simon (Southwark N)|
|Cunningham, Rt Hon Dr John||Humble, Mrs Joan|
|Cunningham, Jim (Cov'try S)||Hutton, John|
|Dalyell, Tam||Iddon, Dr Brian|
|Darling, Rt Hon Alistair||Jackson, Helen (Hillsborough)|
|Darvill, Keith||Jamieson, David|
|Davey, Edward (Kingston)||Johnson, Alan (Hull W & Hessle)|
|Davey, Valerie (Bristol W)||Johnson, Miss Melanie|
|Davidson, Ian||(Welwyn Hatfield)|
|Davies, Rt Hon Denzil (Llanelli)||Jones, Helen (Warrington N)|
|Davies, Rt Hon Ron (Caerphilly)||Jones, leuan Wyn (Ynys Môn)|
|Dawson, Hilton||Jones, Ms Jenny|
|Dean, Mrs Janet||(Wolverh'ton SW)|
|Denham, John||Jones, Jon Owen (Cardiff C)|
|Dewar, Rt Hon Donald||Jones, Dr Lynne (Selly Oak)|
|Dobbin, Jim||Jones, Martyn (Clwyd S)|
|Dobson, Rt Hon Frank||Jones, Nigel (Cheltenham)|
|Donohoe, Brian H||Kaufman, Rt Hon Gerald|
|Doran, Frank||Keeble, Ms Sally|
|Dowd, Jim||Keetch, Paul|
|Drown, Ms Julia||Kemp, Fraser|
|Dunwoody, Mrs Gwyneth||Kennedy, Jane (Wavertree)|
|Eagle, Angela (Wallasey)||Kidney, David|
|Eagle, Maria (L'pool Garston)||King, Andy (Rugby & Kenilworth)|
|Edwards, Huw||King, Ms Oona (Bethnal Green)|
|Ellman, Mrs Louise||Kirkwood, Archy|
|Ennis, Jeff||Kumar, Dr Ashok|
|Fatchett, Derek||Ladyman, Dr Stephen|
|Fearn, Ronnie||Lawrence, Ms Jackie|
|Field, Rt Hon Frank||Laxton, Bob|
|Fisher, Mark||Lepper, David|
|Levitt, Tom||Russell, Ms Christine (Chester)|
|Lewis, Ivan (Bury S)||Ryan, Ms Joan|
|Lewis, Terry (Worsley)||Sanders, Adrian|
|Livsey, Richard||Sedgemore, Brian|
|Uwyd, Elfyn||Shaw, Jonathan|
|Lock, David||Sheerman, Barry|
|McAvoy, Thomas||Sheldon, Rt Hon Robert|
|McCabe, Steve||Short, Rt Hon Clare|
|McCartney, Ian (Makerfield)||Simpson, Alan (Nottingham S)|
|McDonagh, Siobhain||Skinner, Dennis|
|McDonnell, John||Smith, Rt Hon Andrew (Oxford E)|
|McFall, John||Smith, Angela (Basildon)|
|McGuire, Mrs Anne||Smith, Rt Hon Chris (Islington S)|
|McIsaac, Shona||Smith, Miss Geraldine|
|McKenna, Mrs Rosemary||(Morecambe & Lunesdale)|
|McNamara, Kevin||Smith, Jacqui (Redditch)|
|Mactaggart, Fiona||Smith, John (Glamorgan)|
|Mahon, Mrs Alice||Smith, Llew (Blaenau Gwent)|
|Mandelson, Peter||Smith, Sir Robert (W Ab'd'ns)|
|Marsden, Paul (Shrewsbury)||Soley, Clive|
|Marshall, Jim (Leicester S)||Southworth, Ms Helen|
|Martlew, Eric||Spellar, John|
|Maxton, John||Squire, Ms Rachel|
|Meacher, Rt Hon Michael||Starkey, Dr Phyllis|
|Meale, Alan||Steinberg, Gerry|
|Michael, Alun||Stevenson, George|
|Michie, Bill (Shef'ld Heeley)||Stoate, Dr Howard|
|Milburn, Alan||Stott, Roger|
|Miller, Andrew||Stringer, Graham|
|Mitchell, Austin||Stunell, Andrew|
|Moffatt, Laura||Sutcliffe, Gerry|
|Moonie, Dr Lewis||Taylor, Rt Hon Mrs Ann|
|Morgan, Ms Julie (Cardiff N)||(Dewsbury)|
|Morgan, Rhodri (Cardiff W)||Taylor, Ms Dari (Stockton S)|
|Morley, Elliot||Taylor, David (NW Leics)|
|Mountford, Kali||Taylor, Matthew (Truro)|
|Mudie, George||Thomas, Gareth (Clwyd W)|
|Mullin, Chris||Thomas, Gareth R (Harrow W)|
|Murphy, Denis (Wansbeck)||Timms, Stephen|
|Murphy, Jim (Eastwood)||Tipping, Paddy|
|Naysmith, Dr Doug||Todd, Mark|
|Norris, Dan||Touhig, Don|
|O'Brien, Bill (Normanton)||Trickett, Jon|
|O'Brien, Mike (N Warks)||Truswell, Paul|
|Olner, Bill||Turner, Dennis (Wolverh'ton SE)|
|O'Neill, Martin||Turner, Dr Desmond (Kemptown)|
|Öpik, Lembit||Twigg, Derek (Halton)|
|Organ, Mrs Diana||Tyler, Paul|
|Palmer, Dr Nick||Walley, Ms Joan|
|Pearson, Ian||Wareing, Robert N|
|Pike, Peter L||Watts, David|
|Plaskitt, James||Webb, Steve|
|Pollard, Kerry||White, Brian|
|Pope, Greg||Wicks, Malcolm|
|Prentice, Ms Bridget (Lewisham E)||Wigley, Rt Hon Dafydd|
|Prescott, Rt Hon John||Williams, Rt Hon Alan|
|Primarolo, Dawn||(Swansea W)|
|Prosser, Gwyn||Williams, Mrs Betty (Conwy)|
|Purchase, Ken||Willis, Phil|
|Quin, Ms Joyce||Wills, Michael '|
|Quinn, Lawrie||Wilson, Brian|
|Radice, Giles||Winnick, David|
|Rammell, Bill||Winterton, Ms Rosie (Doncaster C)|
|Raynsford, Nick||Wise, Audrey|
|Reed, Andrew (Loughborough)||Worthington, Tony|
|Reid, Dr John (Hamilton N)||Wray, James|
|Rendel, David||Wright, Anthony D (Gt Yarmouth)|
|Rooney, Terry||Wright, Dr Tony (Cannock)|
|Ross, Ernie (Dundee W)||Wyatt, Derek|
|Roy, Frank||Tellers for the Noes:|
|Ruddock, Ms Joan||Mr. Clive Betts and Mr. Robert Ainsworth.|
|Russell, Bob (Colchester)|