Government of Wales Bill

– in the House of Lords at 4:27 pm on 3rd May 2006.

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Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip 4:27 pm, 3rd May 2006

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Thomas of Walliswood) in the Chair.]

Clauses 33 to 48 agreed to.

Clause 49 [Counsel General]:

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

moved Amendment No. 42:

Page 29, line 28, at end insert—

"( ) No recommendation for the appointment of a person as the Counsel General may be made by the First Minister without prior consultation with the Attorney General.

( ) No person may be recommended for appointment as the Counsel General unless he is—

(a) a member of the Bar of England and Wales of at least ten years' standing, or

(b) a solicitor of the Supreme Court of at least ten years' standing.

( ) The functions of the Counsel General shall be exercised by him independently of any other person."

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

We move to the position of the Counsel General in Clause 49 but, as this is my first intervention on the Bill, I will set this and subsequent amendments in context.

As my noble friend Lord Roberts of Conwy knows, it is no secret that I argued strongly against devolution, both as Secretary of State and subsequently. I genuinely believed that my experience demonstrated that Wales was well and effectively served, in the best interests of all its people, by having full representation in the UK Government at the highest level. Since the narrow referendum result that ushered in devolution, however, we have all come to terms with the inevitable changes. In now seeking to improve the Bill, I recognise that there have been teething troubles and worse, but the principality has unquestionably recently been enjoying a tremendous renaissance.

From the Millennium Stadium, which now seems to be hosting the FA cup final indefinitely, the Welsh National Opera and the Millennium Centre, to the fantastic new series of "Doctor Who"—filmed in Wales by BBC Wales, using Welsh talent but entrancing an entire nation—it is an exciting phase in the history of Wales. Of course, the Assembly Government cannot be cited as the single cause of all this, but they are part of this new era and have an integral role to play in the future of Wales. We must, however, be hard-headed about that future. The devolution settlement across the United Kingdom is very uneven, and it is hard to see it settling down for any length of time until all the constituent parts of the union are palpably being treated fairly.

Aspects of each devolutionary settlement give cause for concern. I shall deal with the Ram doctrine and the royal prerogative shortly, but I turn first to the crucial question of the role of the senior law officers in the structure of government in Wales. On paper, the Counsel General is neither fish nor fowl. The role is a curious amalgam of poacher and gamekeeper, both offering friendly and courteous advice to members of the Assembly Government and watching over their shoulders to ensure that they behave themselves. I hope to hear from the Minister how he reconciles these two approaches.

There is no mention of a Counsel General in the Government of Wales Act 1998. The role as I understand it has been to act as a senior legal adviser to the Assembly. There is obviously no objection to the position receiving statutory recognition. However, there is a markedly different system in Scotland, and there is an element of confusion about the future role of the Counsel General in Wales. The Counsel General is expressly stated to be a member of the Welsh Government. The assumption seems to be that the Counsel General will continue to act as a law officer to the Welsh Executive. Paragraph 2.9 of the White Paper states:

"His or her principal role will be to advise the Welsh Assembly Ministers on legal matters relating to the exercise of their devolved functions".

However, a number of specific references in the Bill confer a different role: initiating challenges if the Assembly or Ministers act outside their powers. These two roles may sound similar, but the duties owed in the two roles go in opposite directions. As legal adviser to Ministers, the Counsel General owes them a duty to try to keep them out of trouble. As the person responsible for initiating challenge, the Counsel General's duty is, where appropriate, to get them into trouble. It is almost the difference between prosecution and defence.

I hope that the Minister will be able to clarify this, but whichever of the above-mentioned roles the Counsel General is to fill, and all the more so if he is to perform both at the same time, he needs to be a lawyer—I would venture to say a lawyer of considerable stature—yet there is no mention in the Bill of a need for him to have any legal qualification or experience. I hope that the Minister will comment on that aspect, too.

It may be said that all these different roles can be combined in a person of outstanding experience, ability and integrity, and that it all depends on the quality of the individual. Perhaps so, but should the legislation not then say more about the kind of individual who might be considered suitable for the post?

It is essential to ensure that the appointment process is transparent and that the individual appointed possesses, and is seen to possess, independence as well as impartiality and integrity. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

We on these Benches support the amendment and seek clarification on whether the Counsel General is now to be a political appointment, as are the Solicitor-General and the Lord Advocate in Scotland. I particularly like the third proposed subsection of the amendment, which states:

"The functions of the Counsel General shall be exercised by him independently of any other person".

The Counsel General who was appointed and served for a long time in that position in the Welsh Assembly certainly acted independently, advising the Presiding Officer and Members of their powers. He has retired but has not, as I understand it, been replaced. Consequently, there is a wide gap in the legal department of the Welsh Assembly that has to be filled. It is right that there should be a lawyer who advises on the powers of the Assembly. I hope that he will not be a political person; I hope that he can give independent advice.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I support what has just been said by my noble friend Lord Thomas of Gresford and the noble Lord, Lord Hunt. The history of this appointment is not altogether happy. As has been said, Mr Roddick, who was the first Counsel General, regarded himself, and was widely regarded, as being entirely independent. Those who have discussed his appointment with Mr Roddick know that there were uncomfortable moments for him, for he did not always know where the fountainhead of his independence lay. It was by him and in his courage in the job that that independence was established.

After his retirement, there was what can be described only as an unseemly mess. There was a completely independent trawl for a new Counsel General. Recruitment consultants were used in the normal Civil Service way and the Civil Service Commission carried out the interviews. I believe that the final interviews were chaired by the First Civil Service Commissioner, who is a respected Member of this House. An appointment was provisionally made, of an extremely distinguished lawyer who everyone who knows the Welsh or the legal world would have regarded as an exemplary, apolitical appointment. For reasons that have never been adequately explained, it appears that the present First Minister rejected that appointment and, as a result, there has been no Counsel General since then.

It is clear from what occurred that the present First Minister, at least, wished and presumably wishes that the Counsel General should, in effect, be like the Solicitor-General for Scotland or Lord Advocate; that is, a political appointment, a member of the Government in political terms and, as happens conventionally with Scottish law officers, someone who becomes a Member of your Lordships' House. To many of us, that is not acceptable. We can do better in Wales. Someone like the person who the Civil Service Commission wished to be appointed would be an outstanding public servant, and would ensure that the Welsh Assembly Government's activities were lawful and that the Bill, when it becomes an Act, is fully carried out. There will be real concern, even in political circles in Wales that, if it is to be merely a political appointment, the quality of that appointment will suffer and the government of Wales will suffer as a result. This is therefore an extremely serious issue on which real clarification is required from the Front Bench.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I have some sympathy with the amendments. The office of Counsel General has suffered a sea change within the past few years. When the Assembly was first created, the role of the Counsel General could probably have been said to be akin to that of a conscientious clerk to a county council in the old days when such a clerk was a lawyer and intended to act as the solicitor, as it were, for that body. With the development of the Assembly, and particularly with the developments enshrined in the Bill, it is entirely proper that the role of the Counsel General should be regarded as more comparable to the role of an Attorney-General than to that of a clerk to a county council.

I agree completely with what has been said: it is essential that the Counsel General is a person of the highest legal standing and, indeed, of considerable experience. I do not comment on what the noble Lord, Lord Carlile, said about the difficulties relating to appointment. I have shared chambers with both Mr Roddick, whom I regard as a person of the highest distinction, and Mr Elias—the candidate whose candidature caused such controversy—again, a person of the utmost probity and the first rank of legal experience and expertise.

Nevertheless, if the role is to be comparable with that of an Attorney-General, one may very well have to accept that it is a quasi-legal appointment. That does not damn that appointment for all time. Attorneys-General perform two roles: they are members of a government and political creatures, but they also exercise quasi-judicial functions. I believe that in all parties over the last 100 years one has found, almost invariably, an adherence to such standards. I had the very splendid experience in this Chamber of being an understudy to the late Lord Elwyn-Jones. I cannot imagine anybody who portrayed those qualities of judicial independence as well as he did. I would accept, therefore, that the development of the Assembly justifies a change in the role of the Counsel General. It is inevitable that there should be some prospect of that person being a political appointment. I am not entirely happy with the idea that he should be a Minister; I would prefer him to be independent of that system.

However, I doubt very much whether one can have it both ways. One has to accept, therefore, his political involvement. What I unfortunately do not accept is that there should be consultation with the Attorney-General before an appointment is made. The Assembly is given great powers and much trust is to be invested in it. It would be insulting and wholly unnecessary for there to be a necessity for that consultation.

Photo of Lord Richard Lord Richard Labour

When the Assembly was constituted as a corporate body, it was quite clear that one needed one Counsel General, but it became clear after a while that he had to perform two distinct roles. One role clearly was that he was there to advise the Assembly Government, who, however one looked at the issue and wrapped it up, existed as a government. The other role was advising the parliamentary Assembly and particularly the Presiding Officer.

Marrying those two together was, to say the least, rather difficult and required a man of considerable standing to pull it off. Now that we are reconstituting the basis of the Assembly, and in effect saying that there should be a clear distinction between the Assembly Government on one hand and the Assembly on the other, the role of the Counsel General has to change. He cannot ride both horses and straddle that gap any more. He should be there primarily—I imagine that this is what the Government have in mind; certainly it is what I had in mind—to advise the Government on such matters as they require advice on, in exactly the same way as the Attorney-General and the Solicitor-General here would advise the Government on how they should proceed.

It is right that the Presiding Officer's department should have its own legal staff and access to its own legal advice. I see nothing wrong with that. Advising the Assembly Government in the way in which the Government at Westminster or the Scottish parliamentary Government are broadly advised would therefore seem perfectly acceptable in Wales, provided that there is at the same time a growth in the legal advice available to the Presiding Officer and Members of the Assembly. I hope that we can proceed on that basis. But I am bound to say I share the view of the noble Lord, Lord Elystan-Morgan, that, if ever there were matters for the Assembly, this would seem to be one of them. It is not a matter for the Attorney-General.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip 4:45 pm, 3rd May 2006

I begin by warmly welcoming the noble Lord, Lord Hunt of Wirral, to our discussions. Several issues have been raised that are very interesting and, to be absolutely frank, completely new to me. We will read and reflect on the comments of noble Lords, particularly those of the noble Lord, Lord Carlile of Berriew, and do whatever needs to be done.

As we have heard, Amendment No. 42 seeks to ensure that the Attorney-General is consulted on the appointment of the Counsel General. It also places a condition on the recruitment of the Counsel General to ensure that the office-holder must have been either a member of the Bar or a solicitor of the Supreme Court for at least 10 years. The recommendation for the appointment of the Counsel General is properly a matter for the Welsh Assembly Government, with the approval of the Assembly. The Government agree with the noble Lord, Lord Elystan-Morgan, and my noble friend Lord Richard that the Attorney-General should not be consulted on the appointment.

The Counsel General will be a member of, and the legal adviser to, the Welsh Assembly Government. He or she will be their representative in the courts and, in this capacity, the Counsel General and the Attorney-General could conceivably find themselves representing opposite sides of a devolution issue. We believe that the limitations which the noble Lord seeks to place on the criteria for the selection of the office-holder are too restrictive. Given the nature of the office of Counsel General, it is inconceivable that the First Minister would recommend for appointment a person who did not have a high degree of legal expertise and experience. To impose a specific set of qualifications would be unnecessary and an undue constraint on the First Minister's discretion. What if the best candidate had nine years' experience rather than 10? Furthermore, very specific levels of legal qualification, which may be appropriate for a member of the judiciary, are not necessarily so appropriate for someone who will be a member of the Welsh Assembly Government as well as their legal adviser. The First Minister may wish to take other experience into account, such as experience in constitutional matters generally.

As laid out in the Bill, the appointment will be made by Her Majesty on the recommendation of the First Minister. However, the First Minister must have the Assembly's agreement to the recommendation. The role of the Counsel General has no effect on the role or status of the UK law officers who were consulted on the drafting of the Bill. It might be helpful if I place on record exactly what the Counsel General's role will be—to provide authoritative legal advice to the Welsh Assembly Government; to represent the Welsh Assembly Government in the courts generally; to institute proceedings for the determination of devolution issues and to defend any such proceedings instituted by the Attorney-General; to receive notice of cases involving devolution issues; to monitor proposed Assembly measures and, following a yes vote in a referendum, Assembly Bills for compliance with legislative competence; to refer doubtful cases to the Supreme Court, when it is established, but to the Judicial Committee of the Privy Council in the mean time; and to meet UK law officers and law officers of the other devolved Administrations.

I hope that, with that explanation, the noble Lord will feel able to withdraw his amendment.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

This has been an interesting debate. I am particularly grateful to the noble Lords, Lord Thomas of Gresford and Lord Carlile, for filling in a bit of the political background and stressing the points which were aired early in this debate. I found the advice of the noble Lord, Lord Richard, very useful in setting some of the background and the role that he sees the Counsel General playing, as was the insight and knowledge of the legal profession in Wales given by the noble Lord, Lord Elystan-Morgan.

I am grateful to the Minister for agreeing to ponder some of the points, notably those made by the noble Lord, Lord Carlile. I am still unsure how this role will proceed, particularly as regards challenges. I recognise that one could find the Counsel General on one side and the Attorney-General on the other. I should like to reflect on some of the points made by the Minister. In particular, I am grateful to him for setting out in such detail the role of the Counsel General and the functions that he will perform. Against that background, this has been a useful discussion. My noble friend and I would like to consider carefully the points made by Members of the Committee. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clause 50 agreed to.

Clause 51 [Limit on number of Ministers]:

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

moved Amendment No. 43:

Leave out Clause 51 and insert the following new Clause—

"LIMIT ON NUMBER OF MINISTERS

(1) Not more than eight persons are to hold the office of Welsh Minister appointed under section 48 at any time.

(2) Not more than three persons are to hold the office of Deputy Welsh Minister at any time."

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

The amendment is self-explanatory. It seeks to limit the number of Welsh Ministers to eight and the number of Deputy Welsh Ministers to three, rather than the current provision to limit the total number of both posts to 12. It is a minor change and a probing new clause. I also seek to probe various issues relating to this provision.

There are many reasons in favour of a limitation on the number of Ministers, not least the example of what has happened in Scotland. The number of Scottish Ministers has exploded from the original five to the current 22. I know that the responsibilities of the Scottish Parliament are considerably more extensive than those of the Welsh Assembly. Nevertheless, 22 Ministers is substantial. It might be described as a kind of overgrowth. It has obviously led to increased cost and complexity for possibly questionable benefit. In Wales, with its Assembly membership confined to 60, an inappropriately large number of Ministers and Deputy Ministers would, I think we would all agree, also reduce the number of Welsh Assembly Members available to hold those Ministers to account.

I am glad to see that this Bill does not repeat the mistake made in the Scottish Act of placing no limit on the number of Ministers. As it is obviously so much harder to reduce the number of Ministers once they have been appointed than to prevent them applying in the first place, it is sensible to have that limiting provision from the start.

The current provision makes no distinction between Ministers and Deputy Ministers, which is necessary given that there is some confusion over the precise role of the new deputies. Perhaps the Minister would like to take this opportunity to explain exactly what need he envisages Deputy Ministers fulfilling. What is to be their role? Are they the equivalent of Ministers of State or Under-Secretaries of State in the United Kingdom Government? In addition, how will the National Assembly cope with the increased workload that will result from the implementation of Part 3 and especially Part 4?

We have heard in the other place that the Assembly will sit for more weeks and more hours in the week and that that should allow Assembly Members adequately to scrutinise the legislation and perform their functions. If the Minister has views to express on the new Assembly and its workload, we would be grateful to hear them. I beg to move.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

We feel that this amendment is too restrictive and prescriptive. Eight Ministers does not encompass the functions of the Assembly. In Part 1 of Schedule 5 it is interesting to see all the fields that the Welsh Assembly covers; it lists as many as 20. That is approaching the kind of figure that the noble Lord, Lord Roberts, said existed in Scotland. It is clear that some of the headings of the fields of Assembly responsibility could be combined.

Agriculture, fisheries, forestry and rural development are clearly one responsibility, as at present. On the other hand, field two is ancient monuments and historic buildings. I do not think that any Minister would wish to be described like that; I am not sure whether he would have a very long shelf life. Other areas are, understandably, combined at the moment: culture and the Welsh language; economic development; education and training. The environment is a field in itself. The list runs through the fields of health, highways and transport, housing, local government, social welfare, and tourism, which are all very important. There is also, for example, water and flood defences, and town and country planning. When you start to work your way through those functions, you see that eight Ministers is an inadequate number.

We agree with the wording of Clause 51, which lays down that there will be 12 Ministers. That seems sensible, particularly in the fields that I have just listed.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip 5:00 pm, 3rd May 2006

As we have heard, Amendment No. 43 would limit the number of Ministers to eight and Deputy Ministers to three. The Government agree that a limit is important to the effective function of the Assembly and that there should be a limit on the size of the payroll vote. The Bill sets a statutory limit in Clause 51 so there is no danger of the sort of explosion mentioned by the noble Lord, Lord Roberts, that has happened in Scotland. We agree with the noble Lord, Lord Livsey, that the amendment is too restrictive. We do not believe that the limit on the number of Ministers and Deputy Ministers needs to be reduced. Moreover, the Government believe that it is not necessary to limit the First Minister's discretion over the balance of Ministers and Deputy Ministers.

The limit prescribed in the Bill—a combined total of no more than 12 Welsh Ministers and Deputy Welsh Ministers—is consistent with the current situation. There are currently eight Cabinet Ministers in addition to the First Minister, and four Deputy Ministers.

In the House of Commons, there are currently 89 Ministers, including Whips, and 51 Parliamentary Private Secretaries. This represents around 21.7 per cent of the total membership of the Commons. The limit that we have proposed for the Assembly, taken together with the First Minister and the Counsel General, represents only a fractionally greater proportion of the Assembly if the Counsel General is also an Assembly Member, and a smaller proportion than in the House of Commons if the Counsel General is not.

The Assembly will also have powers over Welsh Ministers' and Deputy Welsh Ministers' salaries by virtue of Clause 53, should there be any concern about the size of the payroll. Furthermore, I draw the attention of the Committee to the fact that in the Assembly committee's consideration of the Bill, the only suggested amendment to this clause, which was subsequently withdrawn, sought to set limits of eight Ministers and five deputies.

The noble Lord, Lord Roberts of Conwy, raised the question of the workload of the Assembly in relation to the number of Ministers. As I believe I pointed out previously, to ensure adequate scrutiny there is considerable scope for the Assembly to adapt its working practices and to spend less time on routine subordinate legislation. The Presiding Officer, the noble Lord, Lord Dafydd Elis-Thomas, agrees and has said that the timetable should increase from 33 to a minimum of 40 weeks a year and that Monday and Thursday mornings should become part of the Assembly's working week. In an interview he said:

"I agree with the Secretary of State, we all have to work harder here. There should be three to four days of proper scrutiny . . . We should sit for at least 40 weeks a year . . . We finished for Christmas at least a fortnight before Parliament".

With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

I am grateful to the Minister for his reply and the other comments made in this brief probing debate. I must say to the noble Lord, Lord Livsey, that my mind goes back to the time when only three Ministers looked after the Welsh Office and it was managed. We expect that many of the 20 or so spheres that he mentioned will be combined as responsibilities for Ministers. Nevertheless, the difference between the new clause and Clause 51 is minor, as I pointed out. We are glad that there will be a limit in the Bill on the number of Ministers, and also to hear repeated what was said by the Presiding Officer of the Assembly and endorsed by the Government: that the Assembly sittings and number of working days would be extended to cope with its new responsibilities, which, after the passage of the Bill, will be substantially different from the work of the old Assembly, with far more emphasis on holding Ministers to account. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clauses 52 to 58 agreed to.

Schedule 3 agreed to.

Clause 59 agreed to.

Clause 60 [Promotion etc. of well-being]:

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

moved Amendment No. 44:

Page 35, line 22, after "anything" insert "within their powers"

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I thank the Minister for his kind welcome earlier today. I wish to turn for a few moments to the Ram doctrine. As I understand it, the doctrine is set out in a memorandum, dated 2 November 1945, from the then First Parliamentary Counsel, Granville Ram. It states that a Minister of the Crown may exercise any powers that the Crown has power to exercise, except in so far as the Minister is precluded by statute from so doing, either expressly or by necessary implication. But I do not think Ministers can pray that doctrine in aid when they argue against these small amendments.

Amendment No. 44 would insert into Clause 60 the words "within their powers", so subsection (1) would read:

"The Welsh Ministers may do anything within their powers which they consider appropriate".

Under the Royal prerogative, discretionary ministerial powers are held to exist except where they are curtailed or curbed by statute. As they stand at present, however, Clauses 60 and 70 stand to create worryingly wide-ranging and open-ended powers for Ministers. We should think once, twice or perhaps even a thousand times before giving anyone in any circumstances the power to quote Clause 60 to do anything.

I was interested to hear my noble friend talking abut the number of Ministers. I recall the time when I was privileged to work with him in the Welsh Office; he seemed to perform the duties of at least 10 or 12 Ministers. Therefore, he is somebody one would trust always to exercise those powers very carefully indeed. But I do not think he ever sought the sort of wide discretion in Wales currently afforded by Clause 60. I hope the Minister will think carefully about what are reasonably minor amendments but which will set in context how Ministers can exercise their powers.

Just as citizens are free to do anything that is not illegal, so Ministers are generally empowered to do anything which does not conflict with statute. The same is held to be true of Ministers in the Welsh Assembly, which is why it is not only right but essential to qualify the powers created in these two clauses.

The later amendment, Amendment No. 48, would insert, in page 38, the word "reasonable". Therefore, under the heading "Financial assistance" in Clause 70, subsection (1) would read:

"The Welsh Ministers may give financial assistance . . . to any person engaged in any activity which the Welsh Ministers consider will secure, or help to secure, the attainment of any [reasonable] objective which they aim to attain in the exercise of any of their functions".

That would be a good reassurance. In an ideal world or one based upon that hoary doctrine of subsidiarity, power would invariably be passed upwards rather than delegated downwards. But we do not live in an ideal world and that is simply not a practicable system. The fact is that the Welsh Assembly and the Assembly Government or Senedd are all created under an Act of Parliament. It falls to us as parliamentarians to establish precisely what their role and functions are to be and where their powers begin and end.

Of course these clauses are not a recipe for despotism, although in a different context some might put that construction on their terminology. However, unamended and unqualified, they may well be a recipe for chaos and confrontation. They are ambiguous and seemingly open-ended, and they could so easily be improved if Ministers were minded to accept these small but reassuring amendments. The amendments are in no sense wrecking. It could even be argued that they do no more than make explicit what is already very much the moving spirit behind the clauses. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

The noble Lord is not going to entice me down the path of the Ram doctrine. I am not sufficient a constitutional lawyer to debate with him those issues. Let me say, however, that we have taken that point into account. It is because we do not think that Welsh Ministers can rely on that doctrine, which is fairly complex and leads to a great deal of academic debate, that we have included these clauses in the Bill. We want to reduce the uncertainty over Welsh Ministers' powers.

The noble Lord, Lord Hunt, said that his amendments were modest, but so, let me say, are the clauses in the Bill. They are in a very real sense modelled on Section 2 of the Local Government Act 2000, which gave local authorities the power to promote well-being—the noble Lord will be entirely familiar with that legislation. That was done to reduce uncertainty over powers of councillors to act where there was no specific power relevant to what they wanted to do, even though it would be for the benefit of the area and the people in it.

If we seek to create for Welsh Ministers only that range of competence and definition as is in the Local Government Act for councillors, I do not think that the noble Lord can object greatly to what we have in the Bill. His amendments, although not wrecking—I would not use a concept as vulgar as that—would substantially change the Bill. We have included the power in the Bill for a very good reason. The power is executive and not legislative. The Ministers will be answerable to the Assembly for any powers that they exercise. The clause does not give Welsh Ministers the freedom to exceed the devolution settlement; it just enables them properly to exercise their powers by clarifying the extent of those powers.

If the Welsh Ministers did not have a general power at all, they would be uncertain as to their precise ability to participate in important initiatives of benefit to Wales, such as supporting the police as part of a multi-agency initiative to tackle drug-related issues. Another example would be if they wanted to take action outside Wales. They might want to offer grant funding to Welsh National Opera to undertake an international tour. That would be to the benefit of the people of Wales in enhancing the reputation of the opera and spreading appreciation of Welsh culture.

The power would not be specific. Ministers would be acting on a general power of promoting well-being and, if they exceeded any such power, the Assembly would check them, although, in that last illustration, I would expect the Assembly to endorse them and even egg them on in providing resources in that area.

I seek to define a couple of areas, but there are many others—I could go through a long list, but it would not be anywhere near exhaustive—where Ministers would enjoy the support of the people of Wales for enhancing well-being. Unless Ministers had some aspects of general powers, they would not be able to do that. The frustration that obtained in local government and that led to the Local Government Act 2000 extending this concept would be felt in Wales if we did not provide for such a power, as we are doing in the Bill.

I hope that the noble Lord will recognise that, just as he has pursued his amendments modestly, so I am trying to rejoin by saying that these powers are not excessive. There is no attempt to take away the answerability of Ministers from the Welsh Assembly or to extend the concept of the devolution powers. The Bill merely gives them authority and freedom in areas where they would have the right to expect that. It defines for them the area in which that should be so. I hope that, after that explanation, the noble Lord will feel able to withdraw his amendment.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs 5:15 pm, 3rd May 2006

It is my privilege, too, to welcome the noble Lord, Lord Hunt, who proposed this amendment. We go back quite a long way on Welsh affairs. It is good to see him here this afternoon.

On the amendment before us, certainly our Members had a long discussion about Clause 60. It is important to look at the specific promotion points. First:

"the promotion or improvement of the economic well-being of Wales"— we all know that the GDP of Wales is well below the UK national average. A lot certainly needs to be done about that. Then:

"the promotion or improvement of the social well-being of Wales"— we know of many instances and communities where the social well-being is certainly not what it might be and needs to be improved. Finally, as regards the environment or its improvement, we know that the environment of Wales is very precious indeed.

The clause requires that "anything" must be done that is, according to the wording of Clause 60(1),

"appropriate to achieve any one or more" of various objectives. So, after a long discussion, we felt that this particular part of the Bill was appropriate for the needs of Wales.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

I am grateful to the noble Lord, Lord Livsey, for welcoming the amendment. It is good to be working with him, albeit on some modest amendments at the present time. I am grateful to the Minister for his "modest" contribution. I could say that he has so little to be modest about, but I would not dream of doing so.

People considering these debates will be totally confused. The amendment would insert the provision that Welsh Ministers may do anything "within their powers" that they consider appropriate. I am not quite sure that the Minister has addressed the effect of the amendment. As I understand it, there are powers that would cover the areas that he is talking about. The Welsh National Opera is very close to my heart, as he will know—15 years ago we were able to take steps to ensure that the Welsh National Opera went from strength to strength; it is a touring company and is often to be heard in our major cities and in London. The powers are there already. If we are to allow the existing powers to continue, that would be good enough.

I would like time to consider what the Minister has said. I agree strongly with the noble Lord, Lord Livsey, that we are concerned to ensure the promotion or improvement of the economic, social and environmental well-being of Wales. We all share the concern that the GDP has slipped back a little. That is causing great concern for those who want to see Wales going from strength to strength. Obviously I will reflect carefully on all that the Minister has said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 45 had been withdrawn from the Marshalled List.]

Clause 60 agreed to.

Clause 61 [Support of culture etc.]:

Photo of Lord Temple-Morris Lord Temple-Morris Labour

moved Amendment No. 45A:

Page 36, line 11, at end insert—

"other than where to do so would render the exercise of the duties and functions currently undertaken by bodies in Wales created by royal charter or warrant in whole or in part redundant"

Photo of Lord Temple-Morris Lord Temple-Morris Labour

I say at the outset that I have a presence here which needs to be explained in that after nearly 28 years in another place, representing an English constituency, very few people tend to remember—although I am sure that most Members of the Committee are aware of what I am about to say—that I come from Wales, I am proud to say. I come from Cardiff and, indeed, Wales is very much the land of my fathers and of my grandfathers. Over the years I have retained many contacts in Wales, most particularly in the arts sector, which is why I have tabled this amendment.

I have a considerable concern—which I hope is shared by Members of the Committee—that we get devolution right. I say that having been very much in favour of devolution. Indeed, I was publicly in favour of it when I was still a Conservative and devolution was not a policy of that party. There is a very real danger here. Some Members of the Committee may consider that the sequence which I shall outline in a moment is an example of that. After a long period of English dominance over Welsh institutions, there is a danger of overdoing it and of clutching unto oneself all the power that one can—a sort of devolutionary aspect of the "We are the masters now" syndrome.

I also have a very real concern about the merits of the issue. I make it clear at the outset that we are after the best and most effective governance of the arts in Wales and the maintenance of the arm's-length principle which has been with us since 1945, and was introduced by Jennie Lee herself. There is absolutely no argument about the desirability of increasing attendance and participation of disadvantaged groups in the arts within Arts Council of Wales circles or, indeed, anywhere else. Indeed, the excellent record of the Arts Council of Wales in that regard should be referred to. I mention in particular the charity, Youth Music, a creation of the Arts Council of England, but which, to my knowledge, has done excellent work in Wales. It was introduced under the present Government very much with those objectives in mind but is administered mainly by itself under the guidance of the Arts Council and the supervisory role of central government.

These issues, and the background to them, need to be put firmly on the record as the Bill goes through this House and the Government should have the opportunity to comment on and to justify their stance. I have tabled the amendment in no party political spirit. I want my noble friends and Members on all sides of the Committee to realise that. We are dealing here with the governance of the arts. We are effectively granting powers to one part of the United Kingdom—namely, Wales—that are not so exercised in England. I say by way of illustration that I would be horrified if, for example, the National Theatre, of which I am a fairly frequent patron, was to come under the direct control of any government department, however benevolent that control seemed to be when it was introduced. I believe that Jennie Lee would agree with me, were she here today.

I now come to the background to these matters, which it is very important to set out. Section 28 of the Government of Wales Act 1998 gave the Assembly the power to change or abolish a range of public bodies in Wales. These were listed in Schedule 4 to the 1998 Act, which introduced devolution to Wales. The schedule divided the public bodies into four categories—Parts I to IV. The Arts Council of Wales, the Sports Council for Wales, the National Museum of Wales, the National Library of Wales and the Royal Commission on the Ancient and Historical Monuments of Wales are listed under Part IV. Bodies created—this is an important point—by Royal Charter or warrant were all included in Part IV. Under Section 28 of the 1998 Act, the Assembly was debarred from removing any function from a body listed in Part IV unless it was done with the consent of that body. It could not even add a function without that body's consent. The clear motive was to protect the status quo as far as those bodies were concerned. It was, in effect, the statutory embodiment of the arm's-length principle.

That was confirmed with a number of references leading up to the 1998 Act, which should be referred to. Before the present Government came to power in 1997, a Welsh Labour Party document—a good document—was published in 1996. The document, Preparing a New Wales, said:

"Bodies established by Royal Charter or by warrant, under the Royal Prerogative such as the National Museum of Wales, the Arts Council of Wales and the Royal Commission for Ancient and Historical Monuments in Wales will continue to be responsible for their existing activities.

The Assembly will take over the role and responsibilities of the Secretary of State"— in other words, of central Government—

"with regard to these bodies, and will ensure openness and public accountability in their activities".

All is well and good with that, I am sure most of your Lordships will agree. There then comes, after the accession into power of the Labour Government, a government White Paper in 1997, leading up to the 1997 referendum. It was called A Voice for Wales. It made quite clear that:

"The Assembly's powers to restructure bodies will not apply to those which, firstly, operate at arm's length from Government, specially to guarantee the independence of their decisions; and secondly, were created by Royal Charter or Warrant (such as the National Library of Wales). Such bodies are governed by their Charters or Warrants, and these can only be amended by Her Majesty's agreement".

Finally, we come to the debate on the Government of Wales Bill in 1998, in Parliament. During the passage of the Bill in another place, Peter Hain, now Secretary of State for Wales, and for whom I have the highest personal regard, then Parliamentary Under-Secretary at the Welsh Office, said:

"Under Clause 29"— which became the Section 28 that I have already mentioned—

"we have made it clear that royal charter bodies can only gain functions; they cannot be taken away".—[Official Report, Commons, 25/2/98; col. 466.]

Mr Hain had earlier said:

"The assembly has the ability to leave only 16 quangos in existence, if it so chooses. That amounts to a bonfire of the quangos, which we lit with the Bill, and we have complied with our commitments in the White Paper".

This so-called "bonfire of the quangos" is an important part of the background to this, because the Under-Secretary, Mr Hain, then goes on:

"Why did we not abolish all the bodies? That brings me directly to the Arts Council of Wales and the Sports Council for Wales. They together with the other three bodies—the National Library of Wales, the National Museum of Wales and the Royal Commission on Ancient and Historical Monuments of Wales—are all bodies created by charter or royal warrant.

Unless the Conservative Opposition have suddenly become a republican Opposition, surely they would agree with me that it is for Her Majesty to agree changes to those bodies. It is not appropriate to amend them by means of a Bill".—[Official Report, Commons, 25/2/98; col. 462.]

We then come to the actions of the Welsh Assembly. I will deal with this as succinctly as I can—it is the recent history of this matter. As part of the Assembly Government's review of Assembly-sponsored public bodies in 2004, only two years ago, they decided to circumvent that protection of the status quo in the case of the Arts Council of Wales, by seeking to use Section 32 of the 1998 Act—to circumvent therefore the Section 28 that I have mentioned by use of Section 32 of the 1998 Act—which is the equivalent of the Clause 61 that I seek to amend. Section 32 of the 1998 Act gave the Assembly a general power to do anything appropriate to support the arts. They intended to use this section to allow them to transfer responsibility for six large arts organisations, from the Arts Council of Wales to the Assembly Government's culture department, thus making them direct clients of government. That was, of course, the direct subject of a defeat in the Welsh Assembly, which I will refer to in a moment. That was the intention; it has now been, for the moment at least, thwarted by that defeat.

The companies were—for the record I have to mention them, but they are all the largest clients of the Arts Council of Wales—the Welsh National Opera; the BBC National Orchestra of Wales; the Clwyd Theatr Cymru; the Welsh Language National Theatre Company; the Diversions dance company; and the Academi, which is a literature promotion agency for Wales and a representative organisation for Welsh writers in both languages. Their combined annual grants were at the time equivalent to no less than 43 per cent of the total Arts Council of Wales grant in aid. If that is not a form of emasculation, I do not quite know what is.

The Assembly Government also sought to transfer—I say "sought to" because for the moment it has not been able to take effect—or the actual words were to "bring together", the strategic planning functions of the council to the department responsible for culture. In relation to the Arts Council, the Assembly Government challenged the arm's-length principle that has governed the relationship between government and the arts since the creation of the Arts Council of Great Britain in 1945. There had been—and this is not unimportant—no prior consultation on these important proposals. The Arts Council of Wales opposed the change, but proposed a compromise solution that the Minister for Culture, Welsh Language and Sport rejected. It became a matter of public debate—which I remember going on at the time as I was following it quite closely—in which the arts sector gave overwhelming support to the Arts Council's position.

The matter was pressed eventually to a vote in the Assembly in the plenary session on 1 February 2006, and the opposition parties combined to defeat the Assembly Government by one vote. The resolution that was carried instructed the Assembly Government to halt all preparations to transfer responsibility for the six large arts operations until a public review and consultation with all stakeholders was carried out and a further Motion brought to the Assembly in December 2006. We are well ahead of that for the moment. That committee is now in active session. The terms of reference for the review were agreed, and they were extensive. It is being conducted by a panel of six people under the chairmanship of Elan Closs Stephens, the former chairman of S4C. They are all very distinguished people in their own right. It is fair to say that this clause is running ahead of any conclusion that that committee might reach. That is an important point.

I have already mentioned a couple of relevant issues of concern. First, under the current Act an Assembly Member would not be able to abolish the Arts Council of Wales without persuading the Secretary of State for Wales—in other words a Cabinet Minister in central government—to petition the Privy Council to that effect. Under the new Bill, Welsh Ministers are themselves Ministers of the Crown and would be able to petition the Privy Council directly for changes to or abolition of the Arts Council, or the National Museum of Wales, or any of the other bodies. The protection given by the arm's-length principle is therefore considerably less than the 1998 Act. It goes around the safety valve of the Secretary of State.

The second item of immediate concern is Clause 61, which seeks to replicate the effect of Section 32 of the 1998 Act, which I have already mentioned, by giving Welsh Ministers the general power to,

"do anything which they consider appropriate to support", arts, crafts, cultural activities, projects and so on. Given the uncertainty about the use to which Section 32 of the 1998 Act was put, there is a strong case for clarifying the issue in the Bill. Speaking now with a legal hat on, there could be a considerable legal argument here as to whether the action of using Section 32 against Section 28 was legitimate and not perhaps ultra vires, but that has never been heard legally. The sweeping powers that we are giving in Clause 61 in advance of the proceedings of the committee that I have mentioned need to be justified by central government. It is for your Lordships' House, the other place and central Government in taking through this Bill to act in the necessary supervisory way that is merited in this case. I want to re-emphasise that there is an active committee set up to consider this matter because of an Assembly defeat.

My amendment limits what I have described as fairly sweeping powers to support the arts. I hope it clarifies the matter, but such a clarification is not intended to subvert the primary intention of this Bill, which grants the Assembly and its Government a much wider degree of competence. That is all well and good. It introduces a check and balance to ensure that if or when changes are made to these Royal Charter bodies, they will be made by reference to the Privy Council, after full consideration and debate by all parties in Wales, and not by administrative action alone, which is what Clause 61 amounts to.

I now want to sum up the position. I believe that this whole process has been unsatisfactory. There has been no proper consultation with the Arts Council; there has been no proper consultation with anybody else. The former chairman of the Arts Council, who was obliged to leave office on 31 March 2006, was—shall we say—at least constructively, or summarily, dismissed on 23 December 2005. He was a person of very high status and renown in the Welsh arts, and indeed generally. The Arts Council of Wales was united in his defence and against these proposals. There had effectively been no consultation about them. There was also widespread public feeling against the Assembly Government over this, which has done my own party's government considerable harm. It went well beyond the Welsh arts world, leading to the defeat in the Assembly on 1 February 2006.

There is a basic unsuitability in these six bodies being brought into the Government's culture department. There has been talk in Wales of parallels with the Soviet Union and eastern Europe before the Berlin Wall came down. That is a gross exaggeration and I want to make it clear that in moving this amendment I do not doubt the good intentions of the Assembly Government. It is not their integrity that is at stake here, but the good governance of the arts in the longer term. There are many people here who know Wales as well as—or better than—me, including a number who have helped to administer it. Wales is a small place. It is certainly a place where, in its establishment, and indeed generally, everyone knows everyone. In such a small place, a scenario where too much power is put in one place will inevitably lead to a sense of obligation and a general unwillingness to displease that source of power. The effect of that is possibly, or even probably, insidious.

I shall give a couple of examples. Theatres should not be direct clients of government; nor should the BBC National Orchestra of Wales. There is an obvious clash of interest here. The BBC, and not just in Wales, is frequently out of sync with the government of the day. By putting a very important instrument of BBC Wales under the control of the government of Wales, there is a conflict. It should not be a direct client of that government. Finally, Academi gives grants to and represents writers; it should not be a direct client of government.

This is an important amendment. It raises important principles of democratic government and of devolution. Central government and this House have a responsibility to consider it very carefully. In that context, I look forward to my noble friend's reply.

Photo of Lord Crickhowell Lord Crickhowell Conservative 5:30 pm, 3rd May 2006

The noble Lord has rendered the Committee and the people of Wales a very considerable service by tabling this amendment and by setting out the arguments so fully. Previously in Committee, I touched much more briefly on the issue. I referred then to the way in which Mr Geraint Talfan Davies had been treated. Apparently, he was dismissed largely because he represented the views of the council of which he was chairman in opposing the decision taken by Mr Pugh, the Minister with responsibility for these matters within the Assembly. I understand he was also criticised for the fact that the Minister did not consider that the Arts Council had been doing enough to ensure the attendance and participation of all sections of the population, a matter referred to by the noble Lord. The evidence on which that charge was based was a survey carried out by the Arts Council of Wales, expressly at the instigation of Mr Geraint Talfan Davies, its chairman. So it was a particularly strange argument to advance for getting rid of him.

Incidentally, Mr Geraint Talfan Davies, when chairman of Welsh National Opera, played a leading role in extending, by a very considerable extent, the activities of Welsh National Opera in exactly that field, in schools and local communities, for which it is now very well known.

I suppose I should declare an interest in that for half a century or so my father served on the Court Council and Arts Committee at the National Museum and my brother was president of the National Museums and Galleries at the time of his death. My wife also served for many years on the Arts Council of Wales and in another capacity was responsible for introducing into Wales that admirable charity, founded by Lord Menuhin as he became—Yehudi MenuhinLive Music Now, which has probably done more to take music to places and to people who would not otherwise hear it in Wales than any other organisation.

I speak with particular feeling about these issues. I can speak too as having been known, as Secretary of State, for the enthusiasm with which I funded the arts and having launched the great new building in the heart of the National Museum of Wales, which now houses the Davies Bequest. That work was carried on by my noble friend Lord Walker, whom I am glad to see in his place, and by the noble Lord, Lord Hunt, who played a leading role in extending arts activities into the valleys as part of the valleys initiative.

With that background of taking a keen interest in the arts and arts matters, I support every single word uttered by the noble Lord. I looked at this clause with considerable concern when I saw this apparently very extensive power that could be applied, not only, incidentally, to the public bodies to which he referred, but also to other bodies, such as the National Trust, on which one would like a little elaboration. After all, the National Trust has responsibility for buildings and places of historical or architectural interest in Wales and there are other obvious organisations that might be affected by these powers.

I am firmly of the view that the arm's-length principle is an important one. To bring together the funding of these six bodies in this way, so that such a large part of the finance going to arts organisations in Wales comes from a single source—a single Minister—has dangers. The noble Lord spoke of them in very cautious and reasonable terms. I shall certainly not suggest for one moment that the example of Soviet Russia will be followed. He was quite right to dismiss that allegation. However, there are real threats. If all the arts organisations, covering theatre, writing and every form of the performing arts, are funded from a single source, people will feel under obligations. They may feel that they have to listen to suggestions put to them, however discreetly, about the way in which they operate and the kind of performances that they put on or should not put on. It is no defence to say, "Ah well, it will all come under the general supervision of the Assembly" if the Minister is perhaps answerable to a party with a substantial majority in the Assembly. If only to get rid of any suggestion that undue influence is being exerted in this way, one should have the arm's-length principle as a protection.

As the noble Lord, Lord Temple-Morris, told the Committee, Mr Pugh and the Welsh Assembly Government sought to circumvent the limitations of Section 28 by looking to Section 32 of the 1998 Act. Those are exactly the powers that we are now considering. So surely it is right that, if protection should be specifically written into the legislation to ensure that charter bodies are not taken over in this way, there should be no doubts allowed in another clause that might be used to overrule it.

We must recognise that we are dealing with bodies with a well deserved reputation. For many years, organisations such as the National Library of Wales and the National Museums and Galleries of Wales have built up their reputation because they have been governed by people with a huge range of scholarly expertise and management skills. They hold a high reputation today because of that. Of course, Welsh National Opera has an international reputation in its field. We are dealing with bodies that cannot be under threat—if that is the right word—from interference by Ministers because they fail to perform. Many of them have performed outstandingly well.

I therefore hope that the Minister will either accept the amendment of the noble Lord, Lord Temple-Morris, which would be the best way out, or at least give us assurances satisfying us that the powers in this clause could not be misapplied in the way described by the noble Lord, and which were attempted under the previous Act. I hope that the Minister will take his noble friend's amendment extremely seriously. That is what it deserves.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I declare some interests. I am a former chairman of the Brecon jazz festival, vice-president of the Hay festival of literature—which, with the Florence family, we founded to great success—and my daughter is an actor who performs regularly in Clywd Theatr Cymru and on S4C, so I must be careful what I say.

However, I fully support the amendment of the noble Lord, Lord Temple-Morris. He may be surprised to hear this, as I am an ardent devolutionist. I also support what the noble Lord, Lord Crickhowell, who has done a tremendous amount of work for opera in Wales, has said. We have all benefited from the previous status of the Arts Council of Wales, which has performed remarkably well. It went through a rough patch about five years ago but, other than that, it has done a very good job indeed.

I am not a lawyer, but I tend to agree with the interpretation of the noble Lord, Lord Temple-Morris, that, in a legal sense, the Arts Council does not have quite the same status as what would be called a quango. Indeed, when a previous Secretary of State, Ron Davies, said that he was going to have a "bonfire of the quangos", I do not think he was referring to the Arts Council or the Sports Council, because they have a different status.

All that needs to be said has been said. I do not want to delay the Committee too long with these matters, but there is undoubtedly a case for such bodies, which stem from a Royal Charter and which are at arm's length, retaining their status because they should not be the subject of huge political controversy. They should continue to produce excellence for Wales. As we have heard today, they do a very good job.

The noble Lord, Lord Temple-Morris, was correct to refer to Sections 28 and 32 of the Government of Wales Act 1998. It seems extraordinary that Section 28 debarred the Assembly from removing any function from a body listed in Part 4 unless it was with the consent of that body, yet Section 32 has been used to cause the present, enormous hiatus in the construction of the arts in Wales.

I am pleased that Elan Closs Stephens and her committee are to look at the overall situation. The people on that committee are wise and they look as though they will come to a sensible conclusion. I hope that the same wisdom will apply in the Assembly, but we are on dangerous ground here—I speak as an ardent devolutionist—because this is a matter for the Assembly. None the less, the Government of Wales Act 1998 took account of these bodies which were formed under Royal Charter. I give way to the noble Lord, Lord Rowlands.

Photo of Lord Rowlands Lord Rowlands Labour

Does this Bill repeat Section 28 of that Act in any place?

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I think from what has already been said that it does not. I am sure that I will be corrected if I am wrong, but I understand that Clause 61 puts into the Bill what was the upshot of Section 32 of the Government of Wales 1998.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

I shall be very brief. I think that I speak for all sides of the Committee when I thank the noble Lord, Lord Temple-Morris, for his extensive, but necessary, introduction to the amendment. He rightly drew attention to the bonfire of the quangos that was lit by Assembly Government in Wales. Various bodies were tied to the stake, as it were, including the Welsh Arts Council. We also heard on the first day of this Committee about the impending fate of the Welsh Language Board, which is another quango threatened with burning.

The impression has been given that the decision was taken without full consideration of the feasibility or the consequences. It was automatically assumed that getting rid of the quangos was a good thing and could be only beneficial. Gradually, people have come to realise that the quangos served a useful purpose and had many high achievements to their credit.

In the Times of June 15 last year, Magnus Linklater described the situation in Wales as he understood it. He wrote then—I stress that it was June of last year:

"In Wales, where the Assembly has moved to take over arts funding, there is a dawning realisation that the much maligned Arts Council may, after all, be the best body to take these tricky decisions".

He was referring to the allocation of funds to different organisations. He went on to write:

"I know of no European country that does not have some form of semi-independent organisation to manage its arts policy".

So it seems on the face of it that the Assembly Government have committed an error of judgment and would be well advised to revise their thinking.

Photo of Lord Richard Lord Richard Labour

What the noble Lord said is important. He said that the Assembly seems to have made an error of judgment. That may or may not be right, but the question is whether this House should prevent the Assembly exercising that judgment. That is the real point of this debate: not whether it got it right or wrong, but whether the Bill should prevent it going through that exercise. But I interrupted; I had better not make a speech.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

The other side of the question that the noble Lord raised is whether this House should aid and abet the Assembly, as it is alleged to do through this clause. We have considerable cause for concern.

I shall end the quotation from Mr Linklater. He said:

"If every one of these bodies were to be abolished, their functions would have to be subsumed into the great maw of government bureaucracy, staffed by civil servants, controlled by ever-expanding hierarchies of senior officials. Far from contracting, they would expand, for that is what civil servants are good at. Costs would certainly escalate, since at present most quangos are run by councils of enthusiastic experts whose contribution is voluntary. The energy with which they approach their task would be drowned in a welter of benchmarks and performance targets".

There is at least an element of truth in what Mr Linklater said. It is a truth that is becoming more obvious to members of the public in Wales who are interested in what is happening regarding quangos. Important points have been made in this debate and I shall listen with great interest to the Minister's reply.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

As it appears to be fashionable to declare a few interests, I shall start by saying that I am also a vice-president of the Hay literary festival, but I had no idea that I shared that great honour with the noble Lord, Lord Livsey. I have been chairman of the Royal Court Theatre and various quangos relating to libraries, museums and archives, I have served on Arts Council committees, and my father's papers are deposited at the University of Wales, Aberystwyth. Many of the interesting arguments that I have heard this afternoon are arguments that I have had in many discussions about government funding of the arts, the arm's-length principle and what duties and responsibilities government has in relation to organisations it funds.

I am not going to give a great deal of comfort to my noble friend Lord Temple-Morris and other noble Lords who agree with him, because I agree with my noble friend Lord Richard that this is a matter for the Assembly. If, as the noble Lord, Lord Roberts, suggested, it has made an error of judgment, so be it. The great advantage of this debate is that there is a lot of material on record that Assembly Members will be able to reflect on.

Photo of Lord Crickhowell Lord Crickhowell Conservative

As so often before, the noble Lord, Lord Rowlands, asked a crucial question. I asked myself that question, but my researches ran out of time and I never found the answer. I have had a quick glance through the Bill, but I have not found the answer. I do not think that Section 28 of the previous Act is repeated. If not, why not? Why the change of policy? If that is so, this is not just a reinforcement of the argument about the "any powers" clause, but we are engaged in a major change of government policy that has not been identified and about which we have had no explanation. However, I may be entirely wrong and the Minister may be able to show me the relevant clause and the protection that has been repeated.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip 6:00 pm, 3rd May 2006

I was going to come on to the matter but, as the noble Lord, Lord Crickhowell, has raised it, I will deal with it now. Section 28 of the Government of Wales Act 1998 has not been repeated in the Bill, but it has not been repealed either. That will give noble Lords something to ponder on while I continue.

The amendment seeks to restrict the ability of Welsh Ministers to support any cultural or other activity referred to in Clause 61, cutting right across the functions and activities of all relevant charter or warrant bodies in Wales. To give effect to such an intention would impede the proper business of the Welsh Assembly Government and make it impossible for Welsh Ministers to provide, for example, financial support for major events or for institutions such as the Wales Millennium Centre. That would not be an acceptable proposition.

It is absolutely clear that things have happened in the Assembly, particularly in relation to the Arts Council, that have caused great controversy. However, I agree with my noble friend Lord Richard: if there are issues that Members of the Assembly might learn from, so be it, but it is not for us in this Chamber to debate and to legislate on this matter. It is for the Assembly Government to decide and for the Assembly to scrutinise.

We are here not to restrict the Welsh Assembly Government if we do not agree with their policy, but to ensure that the role of the Assembly is clarified and to enhance its ability to scrutinise policies such as this. This Bill—this is a fundamental point—is not the right vehicle for the noble Lord's concerns. This has been a very interesting debate, particularly for those of us who have spent a great deal of time working in the arts world. I am sure that what we have said and debated will be read with considerable interest by many people in Wales.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

The Minister has said that it is not for us to hinder the Assembly in any of its decisions, but could he answer the obverse question: is it our duty to aid and abet the Assembly and, as it were, ease its path on a course on which it appears set?

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I think that "aid and abet" is a highly emotive phrase. We are looking at Clause 61 on "Support of culture etc.". The Bill states:

"The Welsh Ministers may do anything which they consider appropriate to support", a list of functions from (a) to (k). What appears to be being said this afternoon by a number of noble Lords is that perhaps something has gone a little wrong in the Assembly. I say for the third time that we have had the debate, it is all on record, and I am sure that a considerable number of people involved in the arts, not only in England but in Wales, will be interested to read what has been said.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I apologise for coming in at this point. Could the Minister clarify for me that bodies established under royal charter or warrant have the same standing in England and in Wales and will continue to do so after the enactment of this Bill, or will there then be a difference because of the way the clause is worded?

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I understand that there will be a difference because of the way the clause is worded. I think that we have to acknowledge that any government must approach the matters we have discussed of arm's-length principle and of funding of the arts with great sensitivity.

Photo of Lord Richard Lord Richard Labour

My noble friend said there would be a difference between the English and Welsh situations. If this Bill is passed in its present form, is there any difference between the Welsh situation and the Scottish situation where there is devolution? I do not think that there is.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I will have to come back to my noble friend on that. I have difficulty thinking in parallel, but to think in a triangle is, at the moment, beyond me.

Photo of Lord Crickhowell Lord Crickhowell Conservative

I am sorry to interrupt the noble Lord, but he previously made a very important statement. He said that Section 28 of the previous Act had not been repeated but had not been repealed. In that case it is still, presumably, in force, in which case all the stuff he said about not interfering with the Welsh Assembly's freedom presumably does not apply because the restriction is still there in law. Why is he making a speech therefore saying that the Assembly should have full powers on this issue, while maintaining on the statute book a section that specifically prevents it having them? I am delighted that there is a section still on the statute book, but he appears to be making a speech that is not related to that fact.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I do not agree; what I have said is absolutely consistent. The power the Assembly has under Section 28, which is still in existence, is there as a background check to its activities. At the same time it has great freedom to work within the Act and the independence that it has already under the existing agreement and will have under this Bill.

Photo of Lord Temple-Morris Lord Temple-Morris Labour

It falls to me to say a few words in conclusion about this amendment before I seek leave to withdraw it. I say that for the comfort of my noble friend Lord Richard and my other noble friends. I have to confess that, after listening attentively to my noble friend's reply, I am more concerned about this matter at the end of the debate than I was at the beginning. I thought I gave out quite a bit of concern in the course of my few words.

I am very grateful for the support given to the amendment by both Front Benches from the noble Lords, Lord Livsey and Lord Roberts, and also from a former Secretary of State, the noble Lord, Lord Crickhowell, who—I know we agree on the subject—spoke a lot of sense.

Why am I more concerned now than I was then? I believe that the Minister's reply flies in the face of any constitutional principle involved in the matter. I specifically and deliberately moved the amendment on the basis that this Parliament, and your Lordships' House, had a responsibility for this devolutionary measure. I then set out the background to it, which creates certainly political difficulties and potentially legal difficulties in the clash between Sections 28 and 32 of the 1998 Act. There we clearly have a supervisory role.

The Minister's reply gives no indication whatever that there is any concern, other than everyone reading matters with interest—I am fascinated to know that everyone is going to read my speech with interest—about any supervision being imposed. Indeed, a central government responsibility will be abdicated on the grounds that we cannot interfere with it because we are dealing with devolution. That is shielding behind devolution in an Act granting further devolution. What is the point of the Act? What can one ever object to in a devolutionary measure which is introducing further devolution if, because we have already introduced a certain amount of devolution, we cannot then interfere with what the Assembly wants, yet we are busy giving it far more power?

I am fascinated by the fact that Section 28 has apparently not been repealed. I agree with the noble Lord, Lord Crickhowell; it is absolutely fascinating that it does not reappear in the Bill. One wonders why, if Section 28 does not appear in the Bill, it is necessary to put in Clause 61 as a repeat of Section 32. It would not take a genius to realise that Clause 61—I shall have to check this—introduces yet more powers. Involving more bodies has a purpose in the Bill that is directly contrary to the direction in which we need to go.

It gives me no pleasure to speak like this, but I think it is necessary because we have a certain responsibility in this Chamber, which I hope this debate has helped to exercise. I do not seek the opinion of the Committee on something that I tabled from the government Benches. At the same time, I hope that what I and other noble Lords have said is useful, and that there will be an opportunity later in our consideration of the Bill for my somewhat tormented mind to be put a little more to rest as a result of what has been said from the Front Bench. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 agreed to.

Clauses 62 and 63 agreed to.

Clause 64 [Polls for ascertaining views of the public]:

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

moved Amendment No. 46:

Page 36, line 39, after "Ministers" insert ", or the Senedd by resolution with a simple majority of those voting,"

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I shall be fairly brief. Amendment No. 46 relates to Clause 63 on a consultation about cross-border bodies. It would, if accepted, go at the foot of the page and would add to Clause 64 the words,

", or the Senedd by resolution with a simple majority of those voting,".

The Assembly could then give an opinion on a consultation, which seems eminently sensible to us because it could then sound out the public's views on some of these issues. It depends on what part of Wales you are in, but some of the cross-border bodies are pretty important in this respect. The ones about which I am very well briefed are the flood defence committees, which tend to cross the border, following the river systems. The one on the Wye, for example, is a conglomerate of representatives in both Wales and England and ensures that the management of the Wye is good and that there is no excessive flooding. It is a highly co-operative operation run on a river-basin basis. All we really want is to enable the Assembly to express its opinion through a simple majority of those voting. I beg to move.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

Very briefly, I note that Clause 64 highlights the concentration of initiating power in the hands of Ministers so far as polls for ascertaining the views of the public are concerned. Other clauses in Part 2 describe their powers to perform all kinds of functions, including the initiation of secondary legislation. The Assembly's role is largely confined to approval or disapproval. That is something of a change from the past and from previous legislation. Clearly, the Liberal Democrats would like the Assembly to have the independent right, if it commands the support of most Assembly members, to have a poll on a subject of its own choice, not on one chosen by Ministers, and to have full control. I am not clear; is that at all permissible under the Bill?

Incidental to our earlier debate about the use of the word "Senedd", which appears in the amendment, I notice that the official programme for the opening of the new building, which some of us attended on St David's Day, actually refers to the Senedd of the National Assembly for Wales. It does not describe the Assembly itself as the Senedd, so the Senedd is an undefined part or aspect of the Assembly, according to the programme of that great event—the opening of the new building.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 6:15 pm, 3rd May 2006

That is a fascinating point, but is the noble Lord suggesting that the wording on the programme has a certain legal meaning?

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

Someone drafted it, and I suspect that it had the Presiding Officer's approval.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

Perhaps it would not be wise, but I can certainly read from the cover of the document for the opening of the Assembly. It refers to the:

"Opening of the National Assembly for Wales Senedd by Her Majesty the Queen".

The Welsh translation of that is:

"Agoriad Senedd Cynulliad Cenedlaethol Cymru".

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

Will the noble Lord reflect on the fact that an address given on the very same occasion on behalf of the Speaker of the House of Commons, who could not attend as he was indisposed—it was a carefully crafted and measured declaration, read out by the Deputy Speaker—referred to the Welsh body as a sister Parliament?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

I am not sure that I shall go down those byways; I am certainly not going to compete with the noble Lord, Lord Roberts, and his interpretation of the Welsh definition of the opening on that day. I thought that what was being opened was the building, and that that was what was referred to, but if the noble Lord says that the Welsh means that an institution, rather than a building, was being opened, I shall simply defer to his expertise and not go down that track.

In any case, the amendment has nothing to do with the opening of the Senedd of Wales; it is about opinion polls and who can conduct them. It is a fairly minor amendment, and the noble Lord, Lord Livsey of Talgarth, moved it in fairly modest terms. But surely it is based on a misconception. He said that it was a change from the past. So it jolly well is. Of course it is, because the Bill changes a great deal. One of the Bill's main themes is separating the executive from the legislature. That is one of its prime concepts.

I ask noble Lords to think for no more than 10 seconds about whether the power to organise an opinion poll on the exercise of Welsh Ministers' powers is an executive function or a legislative one. I do not think that noble Lords would say within 10 seconds that that is clearly an executive function. That is why it appears here as an executive function. I am not going to tackle the noble Lord, Lord Livsey of Talgarth, on the fact that the amendment would scarcely wreck the Bill; I merely suggest to him that we considered the separation of powers and concluded that this one clearly falls within the framework of the executive. That is why the Bill reads as it does.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I thank those Members who have contributed to this short debate. The amendment is phrased in relation to earlier amendments—I think that they were the first amendments debated—about the Senedd. We had a long debate then, which I have no wish to repeat. I tend to agree with my noble friend Lord Thomas. Certainly, I thought that it referred to the building, but I also heard what the noble Lord, Lord Elystan-Morgan, said; namely, that it was referred to on that occasion as a sister Parliament. Perhaps we should say that there is not clarity in some respects. I know that this was hyped up in the press before the opening of the building and that "discussions" took place about this issue. I will go no further than that.

The amendment is correct about opinion polls. We want the Assembly to have its say. We certainly support the separation of powers to which the Minister has referred—the executive from the legislature. The Minister has put it into context: he believes this to be an executive function. Many of us will remember the polls on whether pubs should open on Sundays in Wales. I will not go into that, but one would expect the Assembly to have had a view on such things. However, without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 agreed to.

Clauses 65 to 67 agreed to.

Clause 68 [Contracts]:

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

moved Amendment No. 47:

Page 37, line 41, at end insert "but subject to any appropriate modifications"

On Question, amendment agreed to.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Clause 70 [Financial assistance]:

[Amendment No. 48 not moved.]

Clause 70 agreed to.

Clauses 71 to 73 agreed to.

Clause 74 [Voluntary sector scheme]:

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

moved Amendment No. 49:

Page 40, line 39, at end insert "for approval"

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

In speaking to Amendment No. 49, I shall speak also to Amendment No. 50. These amendments were originally solely in the name of my noble friend Lord Davies of Coity, who much regrets that he is unable to be with us today. At Second Reading, he gave notice that he would table amendments concerning the Voluntary Sector Partnership Council. He also showed his personal commitment to the voluntary sector in Wales and gave the relevant background, which I adopt: in short, the vital role played by voluntary organisations in our national life and its ability, rather like a well known brand of beer, to touch parts which other parts of the public sector are unable to do. He also mentioned the role of the Wales Council for Voluntary Action (WCVA).

Amendment No. 49 simply adds the words "for approval" to Clause 74. It strengthens the role of the Assembly in the endorsement or otherwise of the annual report on how the voluntary sector scheme has been implemented. Amendment No. 50 should be considered in the context of earlier clauses. The relevant section of the Explanatory Notes is headed, "Inclusive" approach to exercise of functions. Clause 72, which follows, requires Welsh Ministers to establish a partnership council for Wales with members of local authorities and other public sector groups, such as the police, the fire service and so on. Clause 72 includes the partnership council of Wales in the Bill. In my judgment, what is important for the public sector is also to be considered for the voluntary sector, given its importance in our national life.

Clause 74 sets out the obligation on Welsh Ministers to make a scheme for the voluntary sector. Mutatis mutandis, this mirrors the obligation on the Assembly set out in Section 114 of the Government of Wales Act 1998. The resultant scheme provided inter alia for the establishment of a Voluntary Sector Partnership Council as the principal bridge, means or instrument for dealings between the Assembly and the voluntary sector. The partnership council has therefore provided an opportunity for consensus to be reached on major issues of policy and detail affecting the voluntary sector and its relations with the Assembly. Because of the involvement of all four parties in the Assembly, it has also helped to promote the voluntary sector among various local groups in Wales. Most valuable has been the tripartite membership—the voluntary sector, Ministers and Assembly Members—who have learnt by practice to work together in a spirit of co-operation.

That spirit of co-operation has led to a number of successes, including the establishment of the Criminal Records Unit in 2003. This unique body, which is run by the WCVA and is funded by the Welsh Assembly Government, provides the voluntary sector with access to the Criminal Records Bureau. It has also led to the strengthening of links with United Kingdom voluntary organisations operating in Wales. Following the withdrawal, which we all recall, I am sure, with regret, of the Children's Society from Wales in 2003, the partnership council took the lead in organising a seminar from which emerged the code of principles.

Thus, the amendment seeks to maintain the partnership council by adding this to the Bill and by providing an assurance about its future. In my judgment, a precedent has been set by Clause 72, entitled, Partnership Council. It recognises the success of the voluntary sector in Wales under the partnership council and seeks from the Government a positive signal that they value the work of the voluntary sector.

I have now seen a letter, dated 25 April, from the relevant Cabinet Minister, Jane Hutt, the Minister for Assembly Business, Equalities and Children, to Win Griffiths of the WCVA, which I concede throws a new light on the amendment. For the benefit of those Members of the Committee who have not seen the letter, perhaps it would be helpful if I quoted the relevant paragraphs. Following a meeting between Jane Hutt and representatives of the four parties in the Assembly who agreed on certain points, she wrote:

"The first point is that all four parties can affirm their commitment to a productive relationship with the voluntary sector, both from the point of view of the Welsh Ministers and from the point of view of the Assembly. We all four agreed that we wanted this relationship to work and that it was the commitment to making it work which mattered most".

The second point is the relevant one in respect of the proposed amendment:

"The second is that all four parties would wish to maintain a Voluntary Sector Partnership Council following separation. However there are reservations about setting these arrangements in statute and indeed about committing to maintain the status quo, totally unchanged. If the role of the council is to advise and act as a 'critical friend' to Ministers, not all opposition parties may think it appropriate for their Members to sit on a body advising Ministers. There are other models for ensuring cross-party engagement and engagement with the Assembly as a scrutinising body and legislature which we should like to consider further and which we would encourage the sector to think about too".

Clearly the views set out in that letter, which was only recently received, should be respected.

Notwithstanding that letter, I would welcome my noble friend's response. Is there, in his judgment, something to be lost in abandoning the tripartite relationship which has acted with success in the partnership council since 1998? I concede that there is a new dispensation with the separation, but could not something be lost by abandoning that tripartite principle?

What value do the Government attach to the role of the voluntary sector in Wales? I am intrigued by what is said in that letter, pregnant with meaning, about other models that may be pursued. What other models, in my noble friend's judgment and that of the Assembly, could be relevant to the working out of what is for us in Wales an important relationship: that between the voluntary sector, which carries out such valuable work, and the Welsh Assembly Government, both the executive and the legislature. I beg to move.

Photo of Lord Crickhowell Lord Crickhowell Conservative 6:30 pm, 3rd May 2006

I want to make the briefest possible intervention to raise a simple point. I would be grateful if the Minister could respond to it, so that he might shorten proceedings at a later stage. Amendment No. 49 raises whether the Assembly is in a position to give approval to the papers laid before it. The same point applies or could have applied to Clause 73, which we have just passed. It applies to Clauses 75 and 76, although there is a Liberal Democrat amendment on that which raises the parallel point. It also applies to Clause 77. It would be useful if the Minister could comment on this approval question, as it attaches to all the clauses; then we need not raise the issue again clause by clause.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I am grateful to the noble Lord for having read out the relevant part of the letter from Jane Hutt on the amendment, because in principle I support the thoughts behind the amendment. Indeed, the spirit of co-operation is enormous and the contribution of the voluntary sector is huge. I must declare an interest, working in the hospice sector, but I also sound a little warning that if we are not careful to ensure that there really is a good mechanism for the Assembly and the voluntary sector—I personally would like to see something in the Bill—there is a danger of different parts of the voluntary sector going and doing their own thing. Some parts of the voluntary sector are driven by powerful personalities with enormous energy that can be harnessed for the public good but, unfortunately, when they compete for funds they can have a tendency to compete directly with a similar provider adjacent to them, which can create local friction.

The Assembly has done an astoundingly good job at harnessing the energy of all the voluntary sector providers. I want to make sure that that is not lost. While the wording of the amendment may not be perfect, I hope that the Minister will agree to consider the principle behind it to ensure that what has been achieved is not lost as the Bill passes.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I am sure that this is the right moment to congratulate all those involved in the voluntary sector in Wales. They do a fantastic job, often with few resources. I am involved with about 10. I will not list them, but it is important that they receive maximum support. I support the amendment and the sentiment behind it, particularly the point made by the noble Baroness, Lady Finlay, that an overarching co-ordinating strategy that does not cause duplication of effort is needed. The Minister would be advised to consider that point and discuss with the Assembly Members what they are going to do in this situation. Proposed new subsection (2) of Amendment No. 50 refers to:

"(a) the Welsh Ministers,

(b) the Deputy Welsh Ministers, and

(c) at least eleven Assembly members reflecting party balance".

I wonder whether there will be a proper party balance in the circumstances. I say no more than that.

I congratulate the Wales Council for Voluntary Action, which does some very good work, including work with co-operatives. It has some good staff and good co-ordinating skills. In principle, we support the idea but we certainly do not want to be too prescriptive to the Assembly. None the less, a body is needed to co-ordinate matters in Wales and the voluntary sector.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

These are the first words that I will utter on the Bill. They will be extremely brief and modest, but I put it to the noble Lord who moved Amendments Nos. 49 and 50 that the final line of subsection (3) in the proposed new clause would be improved by the addition of a comma after the word "representatives".

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

I listened carefully to what the noble Lord, Lord Davies of Coity, said at Second Reading, and I have listened to the noble Lord, Lord Anderson, today on the subject of the new clause. I have also been in touch with the Wales Council for Voluntary Action, which has developed into a significant body over the years and now has some 25,000 voluntary and community organisations on its database. It has made considerable progress. The noble Lord, Lord Davies of Coity, gave more details at Second Reading about the extent of the council's activities, including its involvement in the National Assembly's voluntary sector scheme, which was the direct outcome, as the noble Lord, Lord Anderson, said, of the requirement in Section 114 of the Government of Wales Act 1998 that the Assembly shall,

"make a scheme setting out how it proposes, in the exercise of its functions, to promote the interests of relevant voluntary organisations".

As I understand it, the resultant scheme provided for the establishment of a voluntary sector partnership council on similar lines to the body proposed in the new clause. Indeed, it seems that the purpose of the new clause is simply to give a statutory basis for what is in effect already in existence. The voluntary sector, I am told, believes that the Welsh Assembly Government would wish to maintain the current arrangements and that it would be appropriate therefore to include the voluntary sector partnership council and its composition in the Bill.

As we have heard, the Wales Council for Voluntary Action is a substantial organisation, which employed some 169 staff in the year to March 2005 and received government support towards its core funding of £721,000. It also received Welsh Assembly funding of £14 million and European structural funding of more than £9 million towards specific areas and grant schemes that fell within its scope.

Presumably, the Wales Council for Voluntary Action can see benefit for itself in the new clause, although—and I suspect that this is what Jane Hutt is getting at—there is an obvious danger that it could be eclipsed in time by the new partnership council. I am sure that it has given this issue its full consideration and perhaps will consider it even further.

My second point concerns whether it is right that the partnership council should be established by this Parliament in primary legislation or whether it might not be a more appropriate subject for the Assembly to deal with. I can understand a statutory council being necessary when statutory local authorities are involved, but non-statutory voluntary bodies are arguably in a different category. I await the Minister's response with interest.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I begin by associating the Government with the congratulations expressed by the noble Lord Lord, Livsey, to the voluntary sector in Wales on all that it does. I hope that, in answering this amendment, I will give total reassurance to everyone that we value and the Assembly values its close relationship with the voluntary sector.

I am grateful to my noble friend Lord Anderson and my noble friend Lord Davies of Coity, who tabled the amendment but cannot be with us today, for raising the very important subject of the voluntary sector and giving us the opportunity to discuss it. The partnership between the voluntary sector and the Assembly has been a very positive development and I am sure that all sides of the Committee would wish that productive relationship to continue.

Amendment No. 49 would have the effect of making the voluntary sector report laid before the Assembly by the Welsh Ministers subject to the approval of the Assembly. With all due respect, I must say that that fails to recognise the consequence of separating the Welsh Assembly Government from the Assembly. The voluntary sector scheme report will set out how the Welsh Ministers' proposals to promote voluntary sector interests were implemented in the previous financial year. It is an executive and administrative document, not a legislative one—that is, something factual and retrospective which the Assembly does not need to approve.

The current Government of Wales Act 1998 requires the Assembly to make the voluntary sector scheme because the Assembly is currently a single, corporate body. With separation, the functions of making and reporting on the scheme properly become a function of the Welsh Ministers.

The Assembly will be able to decide for itself how best to scrutinise the performance of the Welsh Ministers in terms of promoting the interests of the voluntary sector. It will be able to do so in a way consistent with its role as a legislative and scrutinising body, by holding the Welsh Ministers to account.

I recognise the spirit in which this amendment was tabled, which was to signal the importance of the Assembly continuing to be involved in monitoring the interests of the voluntary sector. Given the response from other parties in the Assembly, I am sure that this will be the case, without the need for the change proposed by this amendment.

Amendment No. 50 would put the voluntary sector partnership council on a statutory footing. By doing so, it would seek to preserve what the voluntary sector values about the current arrangements: namely, that they are cross-party and that the voluntary sector itself, through the Wales Council for Voluntary Action, determines the voluntary sector representation. It is understandable that the voluntary sector in Wales should not wish to lose what it has gained through the many years of good practice and experience under the current arrangements. I know that the Welsh Assembly Government have already given a public assurance if re-elected that they would continue with a voluntary sector partnership council. I can also state with some confidence, because discussions have taken place, that the other parties represented in the Assembly would also wish to have a voluntary sector partnership council to advise the Welsh Assembly Government, as part of the voluntary sector scheme.

I hope that this provides the reassurance which the voluntary sector was seeking through this amendment. As to the amendment itself, I fear that what it proposes could prove to be unwieldy and would not best serve the interests of the voluntary sector itself post-separation. I hope that, in the light of these firm assurances, my noble friend will feel able to withdraw his amendment.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 6:45 pm, 3rd May 2006

I concede that part of the motive in tabling the amendments was to seek a signal about the importance of the voluntary sector in the eyes of the Government. To that extent, they have succeeded. Also, I am pleased that there is a consensus in the Committee about the vital role that the voluntary sector plays in Wales. I am extremely pleased by the linkages between individual Members of this House and important parts of the voluntary sector.

On Amendment No. 49, I note what the noble Lord, Lord Crickhowell, said about saving time at a later stage if it were debated. It relates to what is the appropriate role for the Assembly. The annual report will, no doubt, be sent to a vast array of bodies in Wales. Surely, the Assembly should have a somewhat different status from the individual voluntary groups. The question is how this document should be dealt with—should there not, for this document and other matters, be some mechanism for seeking to endorse, approve or not approve those reports that are put before the Assembly?

Amendment No. 50 relates to the partnership council. There may be some fear that, because, under the terms of the Bill, there is to be a partnership council involving local authorities, it might, in the words of the noble Lord, Lord Roberts, "eclipse" the existing council for voluntary organisations.

I note the point about the missing comma at the end of Amendment No. 50. I would be prepared to accept an appropriate amendment in respect of the comma, if that were moved. Certainly, my old teacher at Swansea Grammar School would have been extremely upset. I can hear him saying now, "Anderson, you have a great future behind you", in respect of that. Basically, the two amendments have been debated. I thank all noble Lords for their contributions. I shall reflect on the helpful response given by my noble friend the Minister and, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 74 agreed to.

[Amendment No. 50 not moved.]

Clause 75 agreed to.

Clause 76 [Regulatory impact assessments]:

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

moved Amendment No. 51:

Page 42, line 6, leave out from "must" to end of line and insert "have it approved by the Senedd by a simple majority of those voting before it comes into effect"

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

Amendment No. 51 refers to Clause 74 which concerns regulatory impact assessments. It is an important matter as, if the regulations and legislation are not working properly, they have to be sorted out and expedited. The ability of the Assembly to attempt to resolve these matters in the interests of the effective governance of Wales is very important indeed. Assembly Members may, in some circumstances, be the victims of inadequate regulations which may have an adverse impact on their constituents. If one looks at the regulatory impact assessments, our amendment would require that a code or revisions under subsection (5) must be approved by a simple vote of the Assembly. We wish to ensure that the Assembly gets its head around this matter and, indeed, agrees with the code. This would clearly be an improvement on what happened previously and which necessitated this Bill. We believe that the Assembly can express an opinion in this respect on regulatory impact assessments.

Amendment No. 52 refers to sustainability. Under it, the copy of the report would have to be approved by the Senedd by a simple majority of those voting. Sustainable development is a very important function of the Assembly and was enshrined in the 1988 Act. For example, a report could contain many statements or evaluations of projects in Wales which might not in fact be sustainable. I can give your Lordships two examples of this. One is the much talked about Severn barrage. We know of the excellent work done in Swansea University on tidal lagoons. There is clearly an issue as to whether the tidal lagoon idea along the banks of the Severn estuary might be a better and more sustainable answer than the Severn barrage, while producing the same amount of power. That is an important issue.

Another current issue—which is outside the Assembly's power but, none the less, it could pass an opinion on it—concerns the gas pipelines that are being taken from gas holders in Milford Haven through national parks. That could affect the sustainability of the national parks and would certainly have an impact on the landscape. If the report does not meet sustainable development objectives, the Assembly may wish to reject it. Alternatively, however, if courageous decisions have been made which are contained in the report, it can rightly be endorsed by the Assembly which can express its opinion through a vote. I beg to move.

Photo of Lord Roberts of Conwy Lord Roberts of Conwy Shadow Minister, Wales

I quite understand the anxiety behind these amendments which once again show concern that the Assembly should play an active role in approving or disapproving ministerial action in the context of regulatory impact assessments. How else is the Assembly to scrutinise ministerial activity and properly hold Ministers to account? That is the question. While the principle of the Bill is to transfer powers and functions to Ministers, the Assembly must be afforded every opportunity to hold them to account for their subsequent actions. This is clearly going to be a very important part of the new Assembly's role—a far bigger part than it was in the past under the old regime.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

Amendment No. 51 would require Assembly approval of the regulatory impact assessment code when published or revised by Welsh Ministers. Similarly, Amendment No. 52 would require the Welsh Ministers to obtain the approval of the Assembly for their report into the effectiveness of Welsh Ministers in promoting sustainable development. However, these amendments, as with the previous group of amendments we have just discussed, fail to recognise the consequences of separating the executive and the legislature—something which has been warmly welcomed by this House.

A code of practice is an executive document; it is not one which requires Assembly, and therefore legislative, approval. Clause 76 places a requirement on the Welsh Ministers to make a code of practice setting out their policy on regulatory impact assessment with respect to relevant Welsh subordinate legislation. This carries forward, in essence, the requirement in Section 65 of the Government of Wales Act 1998 for subordinate legislation procedures to include provision regarding regulatory impact appraisals. It will ensure that there is a clear statement of how the costs and benefits of complying with subordinate legislation made by the Welsh Ministers will be assessed, including consultation and when such assessments will be made.

The provisions in Clauses 74 and 75 ensure that the Welsh Ministers will take account of the interests of business and the voluntary sector in addition to the specific requirement on regulatory impact assessments. These are explicit duties—more explicit than is the case with Ministers elsewhere in the UK—and the Assembly will be perfectly capable of holding the Welsh Ministers to account for the way they exercise those duties.

The report containing an assessment of the effectiveness of the scheme in promoting sustainable development is also an executive and a retrospective document and, as such, does not need Assembly, that is to say legislative, approval. I hope that in the light of this explanation, the noble Lord, Lord Livsey, will feel able to withdraw his amendment.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Spokesperson in the Lords, Welsh Affairs, Spokesperson in the Lords (Agriculture), Environment, Food & Rural Affairs

I thank the noble Lord, Lord Roberts of Conwy, for his support of the principles lying behind the amendment. From what the Minister has said, I understand that obviously the separation of powers comes into this. Indeed, he has enlightened us by saying that the code of practice is an executive function and an executive document. I would wish to read carefully what he has said, although it certainly seemed to me to be a clear statement to that effect.

There is another matter that I wondered about. The Minister also stated that Welsh Ministers would be held to account and would have explicit duties. Some of the subjects, particularly in RIAs and sustainable development, can be extremely controversial and, indeed, great differences of opinion can take place. Given what he said, therefore, I hope that the Assembly will hold Ministers to account and that there will be an effective method for it to do so in a democratic fashion. That being the case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 agreed to.

Clause 78 [Sustainable development]:

[Amendment No. 52 not moved.]

Clause 78 agreed to.

[Amendment No. 53 not moved.]

Clauses 79 to 87 agreed to.

Schedule 4 agreed to.

Clauses 88 to 91 agreed to.

Clause 92 [Assembly Measures]:

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

I rise to move Amendment No. 54 and to speak on the Questions whether Clauses 92 to 101 and 108 shall stand part of the Bill. I trust that the fact that I seek to remove the whole of Part 3 from the Bill will in no way undermine the genial and harmonious atmosphere in which today's deliberations have been conducted.

Essentially, Part 2 of the Bill is a statutory system for devolving power to the Welsh Assembly, on a piecemeal basis, by Orders in Council. It is a two-stage process. Stage 1 delegates to the Welsh Assembly by Order in Council the power to legislate on certain matters within certain fields which are stipulated in Schedule 5 to the Bill. Stage 2 gives the Welsh Assembly the power to make what are called "Assembly Measures", as long as those measures are within the scope of the authority delegated by the process in stage 1.

In essence, Assembly measures are primary legislation; but they do not obtain that character until they are confirmed by an Order in Council. These Orders in Council have two functions. At stage 1 they have an authorising function and at stage 2 they have what I would term a "camouflaging" function. At stage 1 they authorise the scope for the Welsh Assembly's legislative power; at stage 2 they camouflage the fact that what the Welsh Assembly is really doing is making primary legislation. Your Lordships should be in no doubt about that.

In my view, one needs inordinate patience in reading Part 3 to reach the analysis that I have just put before the Committee. One would think that Part 3 would start off with stage 1 and then, having completed it, move on to stage 2. In fact, Part 3 starts with stage 2, wanders into stage 1 and in the end wanders back into stage 2. One might take the view that, when the Minister was settling these provisions, he either intended to obfuscate or had just had a very good lunch; indeed, it might have been a mixture of the two.

We are opposed to Part 3 for a number of reasons. The first reason is that it is not authorised by a referendum. Like, I suspect, many of your Lordships, I am not an enthusiast for referendums. I believe that our long-standing system of representative government is the best way of taking all decisions in our country. But the fact is that the existing state of the devolved Assembly is the result of a referendum, so it must follow that any change in that existing state—any deepening of devolution—should also be mandated by a referendum. Such a procedure is set down in Part 4 of the Bill.

One might, therefore, well ask why we need Part 3 at all. Why cannot we simply move to Part 4, have a referendum and, if the Welsh people authorise the degree of devolution, so be it? But that is not what will happen. As your Lordships know, this Bill has been extensively debated in another place. On Report, the point about a referendum was put to the Minister, Mr Ainger, in as direct a manner as possible. Mr Ainger's response was:

"The purpose of referendums is to establish people's view on a change . . . It is pointless to hold a referendum if one knows that one is not going to achieve the change that is its purpose".—[Hansard, Commons, 28/2/06; col. 179.]

In other words, in the view of the government Minister, referendums are valid only if they produce the result desired by the Government. I would have thought that the point of a referendum was to find out what people think. However, the conclusion that Mr Ainger and the Government have reached is that, since the referendum will not produce the result that they want, they will not have a referendum.

Has that deterred them from making any change to the way in which Wales will be governed in the future? Certainly not, because we have Part 3, without a whisper of a referendum to authorise it. That point was also put to Mr Ainger in the debate in another place. Mr Dominic Grieve asked him:

"Why does he think that part 3 is desired by the people of Wales?".

Mr Ainger replied:

"Because they voted for a Labour Government and a Labour manifesto".—[Hansard, Commons, 28/2/06; col. 180.]

It is true that they voted for a Labour Government and it is true that the Labour Government had a manifesto. But there is not a scintilla of a reference in it to the procedure laid down in Part 3. Indeed, during the time leading up to the manifesto, no Minister or anyone else, as far as I am aware, made any reference whatever to any procedure remotely like the procedure in Part 3. It is true that there was an important debate about Welsh devolution in the months running up to the general election but that was in relation to the commission chaired by the noble Lord, Lord Richard; and the proposals that he made were a long way from what is contained in Part 3. In my submission, the argument—just in case the Government are inclined to include it in their response—that it was in the manifesto is no argument at all.

The fact that Part 3 is not authorised by a referendum is only one reason why we think that it does not belong in the Bill. There are two others of equal weight. The first is that the act of delegation in stage 1 is to a very large extent unscrutinised by Parliament in Westminster, either in another place or in your Lordships' House. We are talking here about an Order in Council process; we are not talking about a process that concludes in an Act of Parliament.

How will that process work? Your Lordships will look in vain at this Bill to find that out. In another place, Mr Ainger did to some degree flesh this matter out. Apparently, what is intended is something approaching the following. The Welsh Assembly will make a proposal for a draft Order in Council to delegate certain legislative powers to the Welsh Assembly within the fields capable of delegation under Schedule 5. That draft order will be laid before the Welsh Assembly; but it is envisaged that before it is laid extensive discussions will take place between the Welsh Assembly Government and Whitehall—I presume that "Whitehall" means the Secretary of State for Wales. Once that draft order has been passed by resolution, it, together with the resolution, will appear both in your Lordships' House and in another place.

However, the order will not be subject to any form of legislative amendment. It will be subject to something that Mr Ainger called pre-legislative scrutiny; but nowhere in the Bill is the nature of this pre-legislative scrutiny defined. The honourable Minister suggested that it might include consideration by the Welsh Affairs Committee and perhaps also by the Welsh Grand Committee. The conclusions of both those institutions would be dispatched to the Welsh Assembly in the hope that it might take them into account when it reached a final conclusion on the draft order. The final draft order, after further discussion with Whitehall, is then tabled as an Order in Council both in another place and in your Lordships' House. In the normal way of affirmative resolutions, we will have the opportunity to say yes or no to a text that we cannot amend. In my submission, this is a degree of scrutiny that falls well below the standard one would expect for such a dramatic constitutional change. That is the second reason why we wish to expunge Part 3 from the Bill.

The third reason is that if one looks under the skin of what is proposed in Part 3, one sees that what is happening in reality is that delegation—at both stage 1 and to some degree stage 2—is not from this Parliament to the Welsh Assembly, but from this Parliament to the executive, from this Parliament to the Secretary of State for Wales. Throughout the process under stage 1, the Secretary of State for Wales is intimately involved in shaping the draft order. Indeed, it says expressly in the Bill that if in the end he is not satisfied with the draft order he can refuse to table it.

This is a plain shift of power from the legislature to the executive. Moreover, even when the Welsh Assembly is authorised to produce Assembly measures, at the end of the day, even when that process is completed, it is still the job of the Secretary of State for Wales to table an Order in Council before it becomes the law of the land. It is almost as if this Bill is being used as a pilot for the Legislative and Regulatory Reform Bill, which your Lordships are expecting soon in this House.

I would like to make one further observation in this context. At stage 2, once the Welsh Assembly has the power, the matter will go through to its conclusion. If the political parties that dominate Welsh government and the political party that dominates the Government of the United Kingdom are of the same hue, one can see them being reasonably co-operative. But what if the Welsh Government in the future are of one political complexion and the United Kingdom Government of another political complexion? How on earth is it envisaged that the process laid down in the Bill could possibly work in any manner that could reasonably be described as harmonious? That said, I wish to emphasise again that the third reason that we are opposed to Part 3 is because of the amount of power that is switched from legislative bodies to executive bodies.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities 7:15 pm, 3rd May 2006

We on these Benches oppose the amendments. We start on a different basis from the Official Opposition. It is our view, and always has been, that the Welsh Assembly should have the same legislative competence as the Scottish Parliament.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

I want to make it absolutely clear that we are not against that solution. We are against it without a referendum making that grant.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

Yes, I follow what the noble Lord says, but we are dealing with the Bill in front of us. I do not see anything in the amendments so far tabled by the Conservative Party that would indicate that they pursue the same line as us. We start with the basis that there should be full legislative competence for a Welsh parliament save in reserve matters. That is an issue that we will flesh out in later amendments. Once we have arrived at that position, we have to decide what we will do about the Bill before us.

There is undoubtedly a tortuous procedure to adopt—a word used by the noble Lord, Lord Richard, to describe it was "involved". We by no means consider that the numerous stages and processes set out in the Bill—namely, the application for the Order in Council, followed by putting through a measure of the Assembly—amount to a satisfactory solution. However, it is a step forward. We have always wished to see devolution as a process and not as an event. We wish to see steps taken that lead towards the goal which I personally have been advocating for something like 42 years. It will take more than this Bill to stop me advocating full powers for a Welsh parliament.

Accepting many of the criticisms that have been made by the noble Lord, Lord Kingsland, and certainly accepting that this machinery is not at all as clear-cut as it could be, we nevertheless oppose these amendments.

Photo of Lord Crickhowell Lord Crickhowell Conservative

I acknowledge that the noble Lord and many of his friends have been pretty consistent on this issue, which is why I find it rather strange that they are content with this extraordinarily complex and unsatisfactory set of arrangements, which has been introduced almost entirely because the Labour Party in the other House is divided and because of the fact, already referred to by my noble friend Lord Kingsland, that Ministers do not believe they could win a referendum.

My position, which I made clear at Second Reading, is that I would go straight to Part 4 and give the people of Wales those powers, if that is what they want. I acknowledge that my views were rejected by the people of Wales at the last referendum, by a narrow margin. I fully accept that verdict. I made it clear at Second Reading that I do not want to go back. However, if you are substantially going to change the devolutionary step that was approved by the Welsh people on that occasion on the basis of information clearly put before them, you must have a further authority.

I would not go down the halfway house route. If the Welsh people want to take the devolutionary step and have the same powers as people in Scotland, let them do it, but let us get on with it. Indeed, as regards the suggestion that so far we on the Conservative Benches have done nothing to indicate that we really mean that, I have tabled amendments that would make a referendum easier. I have tried to remove some of the blocking mechanisms that stand in the way. I have said that if a clear majority—rather than a two-thirds majority—of the Assembly want to go down that road, it should not be possible for the Secretary of State to block it. Let us have no aspersions cast on our willingness to go down that road. Indeed, a number of my colleagues in another place made that very clear. Mr Gummer made a passionate speech in which he said that he would like to go down that road and get on with it. There are many other examples of that.

I refer to the power that we are discussing. Incidentally, one of the most curious arguments advanced by Ministers in another place against a referendum is that the scheme that the Government have devised is so complicated that no one will understand it. Apart from the feeling that it was pretty insulting to the people of Wales to be told that they would find the whole thing much too difficult to understand, the general proposition was included by the Labour Party in its manifesto but in such general terms—I have the wording of the manifestos in front of me—that no one could have expected the Welsh people to understand what was actually proposed. Surely, if the Welsh people are to be told that they have given a matter their approval, they should have clearly put before them an explanation of what it is about.

I do not want to go over the ground that many of us covered in great detail at Second Reading, but this is not a modest measure. It is a Trojan horse measure that enables very wide powers to be taken step by step so that we can go down the full road to the kind of legislative Assembly that the Liberal Democrats say they want without a referendum at all. We can get there step by step under this arrangement. That is one of the reasons why we object to it. One should have no doubt about the extent to which this measure can widen the powers and scope of the Assembly and its Ministers. The report of the Delegated Powers and Regulatory Reform Committee is very helpful in this context. As I do not think that its comments have been quoted before in our debates, I propose to quote some of them now. One of the points the committee emphasises is the breadth of the measure. It explains that the competence of the Assembly is defined by reference to 20 fields set out in Schedule 5. Paragraph 24 of the report points out:

"There is no limit to which fields may be added, or which matters within each field. The fields could even be more extensive than the list of subject headings in Schedule 7 (which relates to Part 4 - Assembly Acts)".

At paragraph 26 of the report the committee reasonably states:

"It is for the House to decide whether it is appropriate for such a degree of competence to be conferred by subordinate legislation. It is the apparent purpose of the bill for Part 3 to be a gradual process and for Part 4 to be a more definitive settlement. We consider that an incremental process of increasing the Assembly's competence need not necessarily be achieved by a series of bills. The idea of areas of competence being varied by subordinate legislation is precedented in the Scotland Act 1998".

The committee goes on to say,

"What is different here is the proposed scale of the use of the power: the Scotland Act 1998 itself defines the devolution settlement and the Order in Council power may be used to modify it; in contrast, it is here proposed that Orders in Council will define the competence of the Assembly".

In other words, by this piecemeal measure and without the approval of the Welsh people taken in a referendum, we are going down the full legislative route. That is wholly wrong and wholly improper. We should be either honest about the matter and face up to it—we want full legislative powers given to the Assembly—and deal with it by the proper legislative route, or we do not. It seems to me wholly wrong to abandon the opportunity for anyone in this House to carry out the vital process that it does so well of looking at the detail of legislation—the devil is in the detail and cannot be covered by pre-legislative scrutiny—and allow this vast extension of power without proper authority from the people of Wales. I support the amendment.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I suspect that all those who have taken part, and will be taking part, in this debate will run true to form regarding their views on devolution. Mine go back a very long way, perhaps even longer than those of the noble Lord, Lord Thomas of Gresford. I was a very young boy when I decided that, so far as I could understand, the gaining of a home rule parliament for Wales was not only to be desired but a very condition of the continued existence and development of the nationhood of Wales, and I have not changed my mind.

The noble Lord, Lord Kingsland, said that the basis of his case was that we are dealing in Part 3 with primary not subordinate legislation. That is the main plank of his platform. However, the Explanatory Notes deal with the matter very differently. I hope that I may have the Committee's indulgence to quote paragraph 318 of the Explanatory Notes, which states:

confers on the Assembly the power to make a type of subordinate legislation in relation to Wales called 'Measures of the National Assembly for Wales' in English, or 'Mesurau Cynulliad Cenedlaethol Cymru' in Welsh. They are referred to in this Bill as Assembly Measures".

Then there follow these words:

"The ultimate right of Parliament to legislate in relation to Wales, even in principle on a matter over which legislative competence has been conferred on the Assembly, is preserved".

There can, therefore, be no doubt at all that we are dealing with subordinate rather than primary legislation. It is casuistic to argue on that point.

Under the Local Government Act a county council has wide powers enabling it to adopt model clauses of legislation. Does that make it a primary legislature? I doubt it. I do not in any way wish to disturb the placidity of the waters of agreement, consent and goodwill that have existed in relation to this Bill by anything that I say tonight but I am afraid that, so far as the Conservative Party is concerned, it has been reluctantly dragged into accepting devolution at all and it is essentially a rearguard action. What one has here is the determination of the Conservative Party to put a stop to the whole process of what one might describe in one way as devolution and in another way, so far as the Welsh Assembly is concerned, as evolution.

If Part 3 were taken out altogether, the Welsh people would be deprived of a real advantage: what I described at Second Reading as a bridge between the present situation and the situation where the people of Wales can consider whether they would wish to take up the enabling powers that will essentially have created the foundations of a Welsh parliament. The experience over a few—I hope not too many—years would enable the Welsh people to judge in a mature way exactly what these added powers mean and what they lead to. I do not for a moment believe, therefore, that the main case put forward by the noble Lord, Lord Kingsland—that one has broken over a fundamental boundary—holds any real truth at all.

We are still dealing with the area of subordinate legislation. The powers of this House and of the other place remain absolute. The capacity to set up any number of appropriate bodies, to deal in detail with every aspect of each of these proposals, is infinite. I do not see, therefore, that it is a case of robbing either House of its essential sovereign authority. The Richard commission concluded that a referendum was entirely necessary for Part 4. Why? That is because Part 4 sets up, essentially, a home rule parliament—nothing less than that. Part 3 is a path towards that. If the Conservative Party were to take the view that every evolutionary advance made by the Welsh people for the Assembly must be the subject of a referendum, that would be nonsense. Since the Assembly was created in 1998, there have been, large and small, hundreds of aggregations to its authority. Does one then hold a referendum and ask, "That is what has happened over seven years. Are you, the Welsh people, content with that or not?"? With very great respect, there is a fundamental inconsistency in the attitude of the Conservative Party. I was a Member of the other place in 1972, as were the noble Lords, Lord Crickhowell and Lord Roberts of Conwy, when the European Communities Act was passed. I do not remember the Conservative Party at that time asking for a referendum on such a fundamental matter. Indeed, it stood unanimously against such a referendum. I suggest, therefore, that although there are old echoes here of Conservative opposition to devolution and evolution in relation to a Welsh Assembly, this amendment should be rejected.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 7:30 pm, 3rd May 2006

I did not intend to speak in this debate, but I feel I must respond to the noble Lord, Lord Elystan-Morgan. His argument that this is a form of subordinate legislation is fundamentally flawed. He is resting on the ground that this Parliament retains the absolute right to legislate for Wales. But that very right is retained in respect of Scotland, which would also make that subordinate legislation, therefore that completely undermines his argument.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I have not joined in this debate at all, but I was a member of the Delegated Powers and Regulatory Reform Committee for four years. I am absolutely convinced that it is not making a political point; it is not taking an attitude for or against the Welsh Assembly. The point is whether this House should agree to primary legislation, an unlimited amount by degrees, taking place because of an order from Westminster. I think it was my noble friend on the Front Bench who said that it was as if the regulatory reform Bill coming to this House were already in place. It is a major step for secondary legislation to bring about primary legislation.

While I have much less experience than the noble Lord, I would say to him that this is a constitutional point. I rather resent that he is entirely politicising this, saying it is a Conservative fetish because it does not like the Assembly. I am fully in favour of the Assembly—the Welsh people voted for it—just as I am fully in favour of the Scots Parliament. I am fully in favour, if the Welsh people want it, that they should have more power to do primary legislation. I am surprised that a very distinguished Liberal Democrat lawyer from the Front Bench has said that because this is a step towards more power to the Welsh Assembly he will not stand in the way. To my mind, this is a constitutional point, a legal point, and a very big one. I hope we will not have a Division because I suspect the amendment would be defeated. I do not know what my noble friend is planning to do, because it is a huge issue. Westminster would be making a very big mistake if it agreed to this.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

This has been a fascinating debate. The noble Lord, Lord Elystan-Morgan, has certainly taken away from me any necessity to make observations about political differences with regard to this amendment. I am all the more grateful that it has come from the Cross Benches, because it means that my criticism will therefore be muted as far as the Conservative Front Bench's present position is concerned. Let us not make any bones about it: if this amendment were carried, the Bill would be gutted. It would effectively delete the process whereby additional powers are offered to Wales.

The thrust of the point made by the noble Lord, Lord Kingsland, was that there was no referendum to back this up, and that therefore there was no democratic basis on which the Government ought to proceed in these terms. The Conservative Party did not think a referendum was necessary on entry into Europe, it did not think that Scotland needed a referendum, it does think that additional powers to Wales can be processed and consented to by this Parliament only by a referendum. That seems a late conversion to this concept of how one achieves popular support for measures. There is another route, which the Conservative Party and other parties generally follow, and which the Labour Party took with regard to this legislation: to put in its manifesto that it intends to enhance the legislative powers of the National Assembly. That is what Part 3 sets out to do.

I heard what the noble Lord, Lord Edwards, said—I am awfully sorry, I meant the noble Lord, Lord Crickhowell; I was going back to the old days. I think I was guilty of not getting his first name right on another occasion and now I have failed on his title, so I am doubly apologetic. The noble Lord, Lord Crickhowell, referred to this position. With the concept of the Order in Council we are not producing an innovative approach to extending powers; Scottish powers would be enhanced through Order in Council and it is how Northern Ireland has its powers defined. So there is nothing exceptional about the approach, although I recognise that noble Lords opposite have reservations about how the consultation process is developed prior to these powers. We had a debate on this point at our previous Committee sitting. I want to develop and, I hope, answer that point in a moment, but I will give way to the noble Lord, Lord Crickhowell.

Photo of Lord Crickhowell Lord Crickhowell Conservative

The noble Lord asserts that he has answered the point, but I have already pointed out to him that the much respected Delegated Powers and Regulatory Reform Committee has said that what is different here is the proposed scale of the use of the power. The Scotland Act 1998 defines the devolution settlement, and the Order in Council power may be used to modify it. In contrast, it is proposed here that Orders in Council will define the competence of the Assembly. That is an enormous difference, and the noble Lord should not try to pretend that they are the same thing.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

The committee noted—the noble Lord was fair enough to quote this point but I want to use it as evidence for the Government's case—that use of the new mechanism would be an incremental process, with government and Parliament deliberating at each step on proposals to confer legislative competence over specific matters. It would be for Parliament to decide on a case-by-case basis what legislative competence should be conferred on the Assembly as the draft Orders in Council come forward. The important point, which is recognised by the committee, is that each proposal for new legislative competence is subject to the necessary parliamentary approval.

I recognise, and the noble Lord, Lord Crickhowell, is absolutely right, that the committee chaired by the noble Lord, Lord Dahrendorf, approached this issue with its customary due diligence and examined it very carefully. But the noble Lord will not be surprised to learn that we regard the position that the committee has taken up as one to which the Government are able fully to respond, because we are indicating that parliamentary approval is necessary at each stage. What is parliamentary approval for? Not for a Secretary of State's arbitrary act—it was suggested by the noble Lord, Lord Crickhowell, that somehow these Orders in Council were the property of the Secretary of State. The Secretary of State for Wales is unlikely to stand idly by while issues of this moment are being discussed. Of course he would expect to be consulted; I do not know how we would think he was fulfilling his duty as Secretary of State for Wales if he were not involved. But the orders come to this House after the democratic body in Wales has decided that they should do so. If the democratic Assembly in Wales decides that they should not go forward, they do not. What can be arbitrary about that when an Order in Council mechanism is being used—but one that is actually to convey powers that a democratically elected Assembly is seeking? That is the basis of Part 3.

Photo of The Duke of Montrose The Duke of Montrose Deputy Chief Whip, Whips, Shadow Minister (Environment, Food & Rural Affairs (Also In Scotland Team), Environment, Food & Rural Affairs, Shadow Minister, Scotland

I am most grateful to the noble Lord for giving way. I wonder whether he could clarify something for me. As I understand it, the Scotland Act is limited by Schedule 5, and we frequently amend Schedule 5 by statutory instrument. Has there been an Order in Council amending other parts of the Scotland Act, or could there be such, or have there been any Orders in Council involved?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

The noble Duke is absolutely right in his definition; I am merely describing what the Welsh counterpart to that is. The Orders in Council for Wales are not arbitrary, authoritarian acts of an executive; they are the democratic will of the National Assembly being translated to this Parliament for both Houses to consider whether those powers should be conferred. I am merely indicating that, far from the Opposition's case that what is involved here is an arbitrary process that requires a referendum, what we are involved in is a democratic process that fulfils the objectives of the Welsh people.

The Conservative Party in the other House went a little further than the noble Lord, Lord Kingsland, has done today. It faced up to the fact that there are some difficulties with regard to the referendum, because we would have to work out what kind of question could be put to the Welsh people, who enjoy some powers but now may wish to increase those powers; not as a total package, but incrementally. The shadow Attorney-General had a shot at the question that should be put to the Welsh people:

""do people wish to be governed by Order in Council moderated in its detail by the Welsh Assembly".—[Hansard, Commons, 9/1/06; col. 119.]

What kind of participation in a referendum does any noble Lord think would take place under a question of that degree of abstruseness? That is the nature of the problem. What we have already is a Welsh Assembly with powers. There are good reasons and pressures from within the Welsh community for additional powers, but they are not powers that one can put into a total package and say, "This is the question before the Welsh people—do you want this in its totality?". It is not like a European Community referendum, which of course the Conservative Party did not offer; it is not like a referendum for the Scottish people, which the Conservative Party never offered. It is different from those, and that is why the Government are saying that this is not the kind of question that is subject to a referendum. But it must follow due democratic process, and I am identifying the process that will be followed.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 7:45 pm, 3rd May 2006

I am most grateful to the noble Lord. I want to understand the Government's position. Is it that Part 3 can simply be implemented in the Bill without any need for a referendum? Or is it the Government's position that the only reason why Part 3 should not have a referendum is that the question would be impossible to put?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

But it might be the case that the question is impossible to put because the process whereby one develops the interests of the people of Wales is more difficult than the yes/no concept of a referendum question. Why should it be more complex? Is it because the Government have set out to make it more complex? No, because what the Government have created and what has been in place for the people of Wales is a partially devolved Administration and powers that are very limited. We always anticipated that these powers would be subject to pressure for enhancement and improvement as the Assembly developed in its confidence and as the Executive became more and more responsive to the Assembly. The two main concepts are in this Bill; on the one hand separating the executive from the legislature, which is one major principle in the Bill; and secondly how we have a process that is subject to democratic scrutiny both in Wales, which will be the origin of the request, and in the United Kingdom in both Houses of Parliament when the requests come forward.

It might be said that this looks like a very tortuous road, and a partial road, and one which will take a period of time to deliver. So it will. My noble friend Lord Richard—who has been ever-present with us and now when I want to call him in aid regrettably is not in his place—thought that the process would take up to 2011 before there were additional powers for the Welsh Assembly. Under this process, if the National Assembly so wants it, and if this House and the other place so agree, the process will operate more quickly. It might be said, "This is a pretty complex operation". The noble Lord, Lord Kingsland, who was looking for difficulties rather than helping us with solutions, said, "What about a situation where the Assembly government in Wales might be different in political hue from the rest of the United Kingdom?". That is a concept that beggars belief at present. If that were to occur, the noble Lord is right to identify that there would be greater difficulties. I have no doubt that a government hostile to what the National Assembly of Wales sought to achieve would use this process, through their democratic mandate, to resist some of these proposals. After all, they would have that right; that is how these Orders in Council are meant to be processed.

Does anybody think that that is more difficult for the people of Wales than what obtains at the present time? Does anybody think that it is easy for the National Assembly and the Executive in Wales to contemplate how they would successfully influence United Kingdom legislation if the Executive who initiated such legislation were from another party? It is a clash of two mandates which we all recognise. In any devolved administration that clash will, from time to time, happen. The noble Lord, Lord Kingsland, cannot say that this process will throw up a great many difficulties when a clash of two mandates occurs. Before this concept was ever devised, differences between the administration of the United Kingdom and that of Wales would throw up just such difficulties.

Let us make no bones about the fact that the Conservative Front Bench is proposing, for the first time in the Conservative Party's recent history—I cannot refer back to Edmund Burke, though I am conscious that one or two noble Lords may be able to do so—that it is in favour of enhancing the democratic rights of the people of Wales. It is in favour of greater democracy in Wales, subject to a referendum, but it does not have the faintest idea what the question put to the people of Wales would look like, or even if it would be intelligible. The alternative is the Bill; I support and defend the Bill.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

I am astonished that the Minister should have left the principle of increased democracy until his peroration. Whatever else Part 3 does, it certainly does not increase democracy. It reduces democracy, both in this Parliament and the Welsh Assembly. Essentially, laws are going to be made by deals struck between the First Minister in Wales and the Secretary of State for Wales. They will produce legislative proposals which cannot be amended in either the Welsh Assembly or this Parliament. Why on earth should that be labelled "democratic"? I do not know.

Compared to Part 3, Part 4 is a far more logical solution, and of much greater benefit to Wales. It is certainly far more democratic. All it needs is a referendum. The noble Lord, Lord Thomas of Gresford, was kind enough to see some merit in my criticisms of Part 3; but what overrode his determination to support me was the fact that he wanted Welsh devolution at all costs. I do not mean that in the literal sense; but rather that the noble Lord was so determined to achieve Welsh devolution that he was not going to drop the opportunity this Bill afforded. Am I right in saying that?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

Why do we not simply accept that the Welsh Government need expanded powers in order to do their job, and that this is just an ingenious and tortuous device to bring in legislation without having a referendum? We can then argue on that basis.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

Surely, then, the position of the noble Lord ought to be to vote against the inclusion of Part 3 in the Bill and for the inclusion of Part 4 without a referendum? In terms of democracy, Part 4 is a much better solution for both Westminster and Wales than Part 3. I see the noble Lord, Lord Thomas, nodding.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

We are all agreed. The Conservative Party agrees that we all want to get to Part 4. The question is one of timing. This, although it is a very unsatisfactory mechanism, gives the people of Wales the chance to see the Assembly succeed, without having to go into questions of cost, the nature of the voting system, and other matters which will, in the short term, detract from the ultimate success of the Assembly. That is why I am prepared to go along with this.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

In that case, the noble Lord, Lord Thomas, should be voting against Part 3, but supporting Part 4 without a referendum.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

Thank you very much. The noble Lord, Lord Elystan-Morgan, with whom I have served on many occasions on the Wales and Chester circuit, and for whose judicial and political abilities I have the highest regard, challenged me on the point of subordination. Technically, Welsh Assembly measures are subordinate, in the sense that they become binding law only when they are approved by Order in Council. That Order in Council, the stage 2 order, is not brought to this House. The Secretary of State has no discretion in deciding whether or not to table that order. Once the Welsh Assembly has passed a measure, the Secretary of State is obliged to bring that order before the Privy Council. It is exactly the same situation as for the Overseas Territories.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I said that the ultimate sovereign decision will lie with this House and the other place: of that there can be no doubt.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

I may be corrected by the Government subsequently. I understand that there are no circumstances under which, at stage 2, the Secretary of State would resile from tabling an order following a measure in the Welsh Assembly. The substance of what the Assembly is doing is producing primary legislation. I see the noble Lord nodding. However the Government want to camouflage it, those were the words I used at the beginning of my observations. The substance of what the Government seek to do in stage 2 of this Bill is to give primary legislative powers to the Welsh Assembly. I have no objection to that, but I believe that it should be a consequence of a decision by the Welsh people, and not simply of a Bill in this Parliament.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

As I understand it, the Secretary of State will be little more than a legislative errand boy. The decision with regard to that particular message lies here and with the other place.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

It does not lie here, because where Assembly measures are concerned in Part 2, the power has already been delegated to the Assembly under stage 1. I see the noble Lord shaking his head; but I believe the position I have taken to be absolutely right.

If the Committee were to support Part 3, it would endorse a system of executive decision-making between the Government of Wales and its First Minister on the one hand and the Secretary of State for Wales on the other. This Parliament, shamefully, has only a passing interest in what is going on. It has no right to amend to support any view that it expresses; there is absolutely no obligation for either the Welsh Government or the United Kingdom to take any notice. That is not a system the Government ought to be proud of.

I would have put this matter to the vote if we had finished half an hour earlier. It is plain to me now that the hour is late. Therefore, with reluctance, I am obliged to withdraw the amendment and bring it back at Report stage.

Amendment, by leave, withdrawn.

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.