My Lords, Amendment No. 1 is grouped with Amendments Nos. 2, 3, 4, 7, 8 and 10. The purpose of the amendments is to install the single transferable vote system—voting in proportionality. The topic was discussed at some length in Committee. I do not intend to debate this at great length, although it would be quite wrong, on Report, not to draw attention to the importance of ending up with what we regard as the best system of election to the Welsh Assembly. We are particularly exercised by the importance of the fairness of the voting system and the proportionality in the electoral system.
Amendment No. 1 covers the possibility, at any rate, of an 80-Member Assembly, elected by the single transferable vote. Amendment No. 2 specifies that Members would be elected in multi-Member constituencies. Amendment No. 3 deals with the situation in which two votes would not be cast—as in the Bill at present—but just one vote cast preferentially. Amendment No. 4 is consequential on the above amendments. Amendment No. 7 leaves out Clause 8, which will be necessary to achieve the objective of an STV system to elect Members to the Welsh Assembly. Amendment No. 8 removes Clause 9 and inserts a new clause that specifies that each vote will use the single transferable vote system, which indicates voters' order of preference and eliminates prior choice. We shall come to that in Amendment No. 5, which we will debate after this group of amendments. Amendment No. 10 installs an 80-Member Assembly elected by single transferable vote.
These amendments eliminate the present additional member system of election to the Assembly and the system proposed by the Government as an alternative to the STV system recommended by the Richard commission, where the first-past-the-post system of election in constituencies and a regional top-up list apply as they do at the moment. Noble Lords will remember that we had a vote in Committee about whether candidates could stand in the same region as they stood in for a first-past-the-post election, which is the status quo. I think that was the only vote carried in Committee.
This system overcomes the difficulties with the AMS system, whether carried out under the status quo or under the system proposed by the Government, because it means that there are not two classes of candidates. Everyone is voted to the National Assembly by the same system. There is no difference and no way to say, "This Member was elected by a system that makes him a second-class Member". Everyone has the equality of the same system. That is the benefit of the STV system. We debated the subject at considerable length in Committee, and I make no apologies for returning to it on Report. I beg to move.
My Lords, I support these amendments. I shall tell the House why I am convinced that the Government must rethink in this direction. We have a great step forward here. It is not as big a step as the Liberal Democrat party would have wished, but at least we are moving towards a Parliament, a Senedd, that will have more responsibilities, possibly on the Scottish model, within a few years. With additional responsibilities, we need sufficient Members of the Assembly to allow them to carry out their duties thoroughly. If we look at local authorities in Wales, very few of them have fewer than 40 or 50 councillors because they need to share their responsibilities. I suggest that the National Assembly for Wales is at least as important as any county council in Wales. According to the Government's plans, 60 Members will be elected. Of them, two will immediately be out of the ordinary running of the Assembly and will be the Presiding Officer and the Deputy Presiding Officer. Then there will be 12 Ministers who will have specific responsibilities, which do not include the scrutiny of legislation. So we are down to 46 Members, which is less than nearly every county council in Wales. I suggest that with the additional responsibilities, it is time for the Government to agree that this is a reasonable amendment.
One fact brought up time and again is that we have a bicameral system in Westminster whereby the House of Lords exercises scrutiny responsibilities, which it does very effectively. Wales does not have a second Chamber, which means that there is no similar level of scrutiny. With additional Members, it would have people who could scrutinise legislation far more thoroughly.
As my noble friend Lord Livsey stated, an STV system, a proportional system of election, will be far more representative and will dispose once and for all of that lack of satisfaction with the dual candidatures—a list candidature or a constituency candidature. With an STV system in multi-Member constituencies every Member has the same responsibilities and is elected with the same amount of authority.
We could of course go to a first-past-the-post system throughout Wales, but that has already been rejected as being unfair, inadequate and unrepresentative. You can have 40 per cent of the electors, or, say, 36 per cent as in the UK elections of last year, who can elect the government of the country. We say that a fair system would mean that 40 per cent is 40 per cent of the Members, and with 50 per cent we will have about 50 per cent of the Members. That type of electoral system exists throughout Europe. Why do we have to be the odd people out in Europe?
I went to the opening of the new Assembly building in Cardiff. I was delighted to see that it was a circular chamber—not adversarial but a chamber where people were going to gather together and discuss in a consensus the needs of Wales. The same goes for the Parliament in Scotland. STV is to be adopted there for its next set of local elections. So democracy moves; it cannot be static. Democracy must always evolve and move forward. Adopting this new system—new to us—of the single transferable vote would be our recognition that we, too, are still an evolving democracy. With those words, I support the amendment.
My Lords, I draw the attention of the noble Lord, Lord Livsey, to the fact that the Richard commission recommended STV and an 80-Member seat on the transfer of full primary powers to the Assembly and not in the context of this Bill.
Amendment No. 2, subsection (2), reads:
"Each Assembly constituency shall be comprised of no more than one tenth and no less than one twenty-fifth of the eligible electorate".
Could he in practical terms tell us under the current electorate what would be the smallest size of the constituency and what would be the largest under his proposals?
Thirdly, I would like to say to him and to the Liberal Democrats that I do not believe that you can possibly suggest that these amendments fall within the scope of the original settlement. The proposal is to increase the membership to 80, to completely and utterly change the electoral system, and, incidentally, reduce the voting age to 16. In the absence of a referendum on these issues, I could not possibly support them.
My Lords, the core of these amendments refers to the single transferable vote system, proportional representation. As your Lordships may know, it is a subject in which on an earlier occasion I claimed a certain expertise. It has operated in Northern Ireland since 1973. I fought approximately 10 elections under the single transferable vote system, and, indeed, in one election was part of a very successful vote management arrangement whereby we maximised our results quite significantly and achieved many more seats than mere proportionality would have given us. Like all electoral systems, it can be manipulated.
I appreciate that this matter was debated in Committee, and I shall try to avoid the temptation to speak at any length, but I want to make some points on which I hold very strong opinions—drawn from experience. I am not hostile to proportionality as such; I am quite content to see proportionality at district and regional level; but I am very strongly opposed to any attempt to have proportionality in another place.
The great advantage of the first-past-the-post system is that it produces Governments, not coalitions. Coalitions are intrinsically weak and undemocratic, because they end up with decisions taken after an election by horse-trading between politicians rather than decisions taken by the electorate in the election. It is no small part of the economic and other success of this country that we have retained the capacity to have Governments able to govern. We sometimes do not like what they do, but that is much better than having coalitions, where decisions are not taken, issues are not faced and necessary changes do not occur. I could go on at length on that matter, but it is important that we limit proportionality to district and regional level.
Then we have to choose what proportional system we are to adopt. I find it interesting that Liberal Democrats, who tend to be great advocates of European practice, do not draw the appropriate lesson. Do they have single transferable votes in Europe? No they do not. They have proportional systems, but your Lordships will know what those systems are, so I do not need to go into them. Indeed, one of those European proportional systems was adopted for Wales and Scotland and is now being criticised.
Scotland, we are told, is now adopting STV for local government. It has now become the only place in the world that has ever voluntarily chosen STV. STV was imposed in the Republic of Ireland by this House—this Parliament—against the will of the people. STV was imposed in Northern Ireland by this Parliament against the will of the people. I think that the same was done in Malta. That is all. It is not a good system. In my criticism, I shall mention just a couple of points. It promotes fights within parties. In a multi-Member constituency, if your party has, say, 30 to 40 per cent of the electorate, you would count yourself as having two quotas.
My Lords, perhaps I may ask the noble Lord a question about the Republic of Ireland. He says that the STV system was imposed on it. Am I not right in thinking that there was a referendum in which the people of the Republic of Ireland decided to keep that system?
My Lords, the noble Lord is quite correct. There were two referenda, two attempts by the Irish Government—both under de Valera, I think—to go back to the first-past-the-post system. It is quite correct that on both occasions, the proposals failed because people did not want to go back to that system. I do not think that you can read into that a positive preference for STV against other proportional systems. My comment on STV having been imposed goes back to 1920, when it was introduced. I take the point that is made, but I do not think it affects my argument. Essentially, my point is about the negative effects of STV compared to other proportional systems.
My Lords, perhaps I may interrupt the noble Lord to ask: does not Northern Ireland also have STV for its elections to the European Parliament?
My Lords, indeed we do. We have it at that level—I forgot about that in my summary of the matter. We have also had STV at district council and regional level. I was drawing the distinction that it is undesirable at the parliamentary level. As for having it for the European Parliament, that tempts me to make comments about the nature of the European Parliament, its effectiveness and whether it is ever capable or likely to approach being capable of supporting or maintaining a government. There is too much to say about that.
I was making a point about how STV encourages fights within parties. If you have a multi-Member constituency with, say, five Members and you get 30 to 40 per cent of the vote, or think that you will, you have two quotas. The conventional wisdom is that you run two existing quotas plus one in such a situation, because you cannot make gains if you do not run an extra quota. For those three candidates, who know that two of them will certainly be elected and that one has only a chance of being elected, the most important thing is to be among the two who will certainly be elected. It is easier to persuade existing party members to vote for you rather than for another member of the party, rather than converting persons who are not part of your party's support to support you.
You then get considerable fights within parties. Parties can make some efforts to control that but it is not easy, because the other thing that happens is that the STV gives the elected Member much greater independence vis-à-vis the party itself. There is a benefit to being out of line with the party and to taking an independent line, because you gather publicity as a result. There is a comparative penalty to being a loyal party member. This is bad for political parties and for the health of democracy. Our democracy depends on political parties. We do not elect Parliaments or bodies of independent members. That ceased to happen hundreds of years ago. If you undermine parties, you weaken our democratic process.
The system also promotes parochialism. It becomes necessary for people to maintain their base and constantly to cultivate their grass roots. I can understand Liberal Democrats' thinking that it is a good idea to do that, but that has impacts on what you do. One criticism that you might make of the Northern Ireland Assembly is that more than 80 per cent of the Members elected are also councillors. You dare not leave councils under an STV system. In the Irish Republic, most TDs—I do not know the exact figure—are also councillors. I can hear something being muttered at the end of the Chamber. I shall take an intervention.
My Lords, I remind noble Lords that we are on Report. We have been through Second Reading and Committee, in which we went into this sort of detail. I would be very grateful if the noble Lord could be not quite so discursive about the whole system but focus on the amendment, as we must on Report. Otherwise we will be here all night and all tomorrow night as well.
My Lords, I appreciate the criticism, and I shall try to conclude my comments. I ask the House to forgive me because I did not have the opportunity to contribute earlier, and this is a subject on which I have some views.
I shall not go into the issue of parochialism, but I understand why they abolished the system in the Republic of Ireland. It produced a system where TDs stayed in the constituency and did not attend the Dail. It was recognised in the Irish Republic that it was having a very negative effect on accountability. Unfortunately, the promised legislation in the United Kingdom to end the dual mandate never surfaced, which is a great shame.
I shall just make a last couple of points about another consequence of PR. Those who are starting off in politics in the STV system should try to ensure that their surnames begin with the letters A, B or C. There is a very strong alphabetical bias in this system. Again, I feel personally about that for obvious reasons. This is a very noted bias. I have also made the point that there is a very strong bias towards people being independent and continuing a career as an independent. It might be all right at local government, and it may not be too bad at regional level, but beyond that the effects of this system are really pernicious.
My Lords, given the final remarks of the noble Lord and his useful experience of Ireland, perhaps I should declare an interest in that, as my surname begins with an A, I have benefited from this throughout my life. I also agree with the noble Lord, Lord Roberts of Llandudno, that in principle the architecture of a debating chamber should have an effect on consensus, or on the lack of it, but alas I have not noticed an effect on consensus in the Welsh Assembly arising from its particular architecture.
There are a number of elements to the amendment; that is, the "80 Members", the "multi-Member constituencies" and the STV. On the 80 Members, let us bear in mind that the amendment suggests that this should be the system immediately after the Bill is implemented. However, the view of the Speaker of the Assembly is that the present workload—and, presumably, with the extension under this Bill—does not warrant additional membership. Naturally there are complaints from Members of the Assembly that they are overburdened. But the person who sits in the Chair and watches what goes on is convinced that the workload is such that, with changes in the way in which the Assembly operates, it can manage under the current responsibilities with the existing numbers. Perhaps, ultimately, we should move to 80 Members, but the case has certainly not been made out for it at present.
I can be brief about the STV and multi-Member constituencies because the noble Lord, Lord Trimble, has made much of that case. In my political experience, there has been a certain magnificent obsession of Liberals, then Liberal Democrats, with electoral systems. I recall years ago, John Pardoe, the economics spokesman, who would give a sea, a litany of ills of our economy and end by saying, "All these ills would be ended if only we had proportional representation". I am not sure that Liberal Democrat Peers opposite would go quite that far. But one thing is certain: in multi-Member constituencies the valuable link between the Member and the constituency would be lost. For example, we used to have five Members on a regional basis in Wales. However, after a change in the electoral system for Members of the European Parliament, which was understandable because it was necessary as a result of European electoral law, we moved to having Wales as just one constituency. However hardworking those Members of the European Parliament are, I fear that some local attachment has gone. Fewer people now know who is their MEP. With the best will in the world, given the remoteness of Strasbourg and Brussels, it is difficult enough for MEPs to make a real impact. The new electoral system makes it more difficult.
The noble Lord, Lord Trimble, has mentioned localism and the way in which it has an adverse effect on parties. We rehearsed some of those arguments in Committee. I will certainly not go through them now. We need to look very carefully at moving further along that road. To conclude, 80 Members may come; STV may come; but if it comes, let us at least be aware of some of the negative consequences which will certainly flow from it.
My Lords, the fact that the coalition in the Scots Parliament has opted to have STV for local government elections has been mentioned. In preparing for those elections, certainly in the constituency where I live, the very problems which the noble Lord, Lord Trimble, mentioned, are being discovered even before those elections take place. I wonder very much how the electorate will react to this system. I do not think that at the moment it looks very happy.
My Lords, with great humility and respect, I suggest that we may be discussing the wrong question. The question is not whether STV is perfect: it clearly is not. The question is not whether it is laden with complexities and difficulties: it is. The question is whether the situation that obtains at the moment, and has obtained since the Government of Wales Act 1998, can possibly be regarded as tolerable. The Labour Government are to be congratulated on their chivalry and sense of justice in seeing to it that what otherwise probably would be a Labour hegemony in Cardiff could somehow be avoided. They created a system in good faith and I do not doubt that that was the approach of all parties at the time. But the result is that a party which gained in a first-past-the-post vote some three-quarters of the seats in Wales and three times as many as all the other parties put together finds that, from time to time, it is impossible to carry out its functions as a government. In addition to that, on the second ballot, a tonnage of votes cast for the Labour Party is not reflected in the membership of any additional candidate. That, I respectfully submit, is a wholly intolerable situation. It may well be that the Labour Party will say, "We will tolerate it for the moment", but it may well be too that the next few months and years will force it to a different conclusion.
Parallel with those arguments is the question of membership. I believe wholeheartedly that a membership of 60 is much too small; 80 Members is the minimum number needed to do the job required of them. As the noble Lord, Lord Roberts of Llandudno, has reminded us, the maximum number of Members available to staff a host of committees and to carry out other functions is 46. With great respect to the Presiding Officer, the noble Lord, Lord Elis-Thomas, who is one of the most fascinating political commentators Wales has produced for a long time, I do not of necessity equate his words with holy writ in this or any other matter. Let us consider the position of local government in Wales. All but six of the 22 county councils in Wales have well over 60 Members. No lengthening of hours or further sitting days can make up for that difficulty.
As I have said, the Labour Party is to be congratulated on its chivalry in creating this system and on its integrity, but it would score very low marks in its anticipation of realpolitik. Although this Bill is a vehicle which can be used for that purpose, I have no doubt that it will not do so. But I prophesy that the time will come when the Labour Party will have to return to this matter again and again.
My Lords, I shall be the soul of brevity, if not of wit. As the noble Lord, Lord Rowlands, has said, I am well aware that this scheme was put forward in the Richard commission report. The noble Lord recommended an increase in membership of the Assembly from 60 to 80 and the establishment of the STV system of voting in elections. But the Government have not accepted that proposal either as a whole or in part—perhaps for some of the reasons advanced by the noble Lord, Lord Trimble.
Regarding the numbers of Assembly Members, we have to bear in mind that their role will be very different under this Bill. No longer will they be members of the corporate body with executive as well as legislative responsibilities; they will be Members of the legislature holding, it is hoped, Ministers to account. I do not imagine that their workload will increase appreciably in the early stages and that the proposed increase in numbers can be justified on that account. In any case, as the noble Lord, Lord Anderson, has pointed out, the Presiding Officer has stated that Assembly working hours and days can be extended to cope with an increased workload. So I humbly suggest that the proposals in these amendments are somewhat premature. They have already been considered by the Government and rejected, and indeed we debated them earlier in Committee.
My Lords, I am sorry that I was a little hesitant in rising, but I thought that other noble Lords still wished to participate in the debate, although to be fair we considered these issues extensively in Committee. The noble Lord, Lord Livsey, will recognise that he is not winning any greater support today than he did when he put forward these propositions in Committee.
As to the question of whether the numbers should be increased, I agree with the noble Lord, Lord Roberts, and my noble friend Lord Rowlands that when the Richard commission referred to 80 it was, of course, looking at the development of much greater powers for Wales, Part 4 of the Bill being enacted and a much fuller responsibility for the Assembly than will exist when this Bill becomes an Act of Parliament in the not too distant future. We do not see a case for the additional numbers.
Of course, the noble Lord, Lord Elystan-Morgan, is absolutely right. Much as we respect the noble Lord, Lord Elis-Thomas, and regret the fact that he is not in his place to participate in these discussions today, we do not regard his representations as those of holy writ; and when he indicates that he does not think the size of the Assembly needs to be increased, we do not have to take that as a complete conclusion to the position. He emphasised that the National Assembly is not unduly stretched in regard to its working hours and he mentioned that it works two afternoons a week, which is a fairly modest contribution. Of course we recognise that there is an appetite for work, and we have no doubt at all that additional Members would participate fully, but we cannot see at this point that additional Members are justified, which is one of the crucial parts of the amendments put forward by the noble Lord, Lord Livsey, particularly in regard to Amendment No. 1.
As to the question of STV, I am grateful to the noble Lord who made his first intervention in our deliberations today. We welcome him for that. I think we would have appreciated had he been here at Committee stage because he would have done his demolition job on STV much earlier. It is not for me to add any more to these issues, except to say that all electoral systems can be manipulated. I think we would all confess that all electoral systems have imperfections built into them. There is no such thing as a perfect representative electoral system—that is why these debates rage—but, by the same token, no one can advocate a new electoral system, such as STV, and make the automatic presumption that it is bound to be an improvement on first past the post. As the noble Lord, Lord Trimble, identified—and my noble friend Lord Rowlands also reflected on this point—STV has got imperfections. The Government do not see that it would improve the position.
It was noticeable that in the opening remarks of the noble Lord, Lord Livsey, there was no reflection at all about what STV meant in terms of the relationship between the Member and the constituency or how large such constituencies would be. That is an important point. One of the great virtues of the concept of representative democracy as it has evolved in Britain—certainly with regard to the United Kingdom Parliament—is the link between the elected Member and constituents. Of course, STV, with its very large constituencies and with Members of Parliament from different parties claiming that they represent exactly the same constituency, raises all sorts of real issues with regard to representation and we do not think that the case has been made out.
It has been an interesting debate which has ranged almost as widely as it did in Committee. I am grateful to all noble Lords who have spoken—particularly those who, like the noble Lord, Lord Trimble, have spoken about their direct experience of STV. The noble Baroness, Lady Carnegy, indicated that she has got direct experience of the preparation for STV. I give way to the noble Lord.
My Lords, the noble Lord is not defending the AMS system, is he? Is he aware that its biggest critics are the members of the Labour Party who have been elected to the Assembly? They seem to hanker after the red meat of first-past-the-post. Is the noble Lord defending AMS? Is he saying that we should continue to have that system in Wales for the foreseeable future and beyond?
My Lords, it is not my task to advocate AMS. I am merely indicating the weaknesses of the amendment. We are at Report stage, discussing a group of amendments which we debated extensively in Committee. The case has not been made, and I hope the noble Lord will feel that he can happily withdraw his amendment.
My Lords, I am surprised at the length of the debate and the interest shown in it. It demonstrates that the present AMS system is very imperfect and that there is willingness to find a different way. The issue of the number in the Assembly is related to giving it more powers. There is no doubt that Orders in Council will mean a lot more work—not just two afternoons a week, I am sure. Other bodies, such as the Arbuthnott commission in Scotland, recommended STV. I shall come to that later.
The noble Lord, Lord Rowlands, noted that there would be a difference between one-tenth and one-twenty-fifth. I cannot give him a precise answer now, but I will do so in writing, because I know the point is well researched.
I recollect the noble Lord, Lord Trimble, speaking on this issue in Committee and was not surprised to hear him recount a number of his experiences in Northern Ireland. Northern Ireland and the Republic were given an STV system of election in 1920 but it was abolished in Northern Ireland in 1926. The noble Lord said that it had been operating again since 1973. I understand why he has these reservations, but I cannot accept them as a generality. I know that the Northern Ireland experience has not been what it might be, but it has been quite a success in the Republic. Indeed, to my knowledge, two Protestant presidents have been elected by this system in the Republic. That is quite interesting.
The European Union proportional systems are different but are none the less popular and operate well, as we know from the experience in Germany.
The noble Lords, Lord Anderson and Lord Trimble, mentioned that those in the first half of the alphabet seem to do rather better. In the Lobbies of the House of Commons you will find exactly the same thing regarding the first and second halves of the alphabet. In Wales, of course, there are many people called Williams, Jones and Roberts—I wonder how that would affect distribution.
Issues of localism and the situation in relation to a constituency are important. I thank the noble Lord, Lord Elystan-Morgan, for pointing out the imperfections of the present system. I agree that the Labour Party was chivalrous in giving us the system that we have, but there is nothing wrong in trying to improve it.
We will undoubtedly return to this question. It has been a feature of some speeches; even the noble Lord, Lord Roberts of Conwy, indicated that we might return to this, and the Minister indicated something similar. Without more ado, I beg leave to withdraw the amendment.
My Lords, having discussed the STV and AMS systems, hopefully we can move forward with this simple amendment that we think is fundamental, whatever system of lists is put in, with whatever proportionality. It is very important that open lists are brought in for the Assembly.
This amendment takes away the choice of the order of listing by numbers of preference by political parties. It gives the electors a great deal more power over who they choose to represent them. In fact that power is placed in the hands of the electors because they are not guided in who they will actually vote for on a list. Indeed, we believe one of the downsides of the AMS system is that the lists are chosen for the electors in the order by which they would be elected.
The huge advantage of open lists is that a greater variety of types of candidate can be selected by the electors: women, young candidates, the retired, employed or unemployed candidates, Welsh speakers or non-Welsh speakers, housewives, professionals or members of unions. People may be in all sorts of situations. It may be felt appropriate in certain constituencies for a woman to be elected, but one would know the characteristics of the individual candidate and whether they were worthy of election. The open-list system would create more interest in the election process and far more enthusiasm to vote because of the far greater variety of candidates involved.
My Lords, tempting though it is to embrace the principle of the open list, as my party has done in the past, there would be practical difficulties in the Assembly context. We have set up an elaborate system in the electoral regions for choosing candidates and their ranking on the list, which subsequent experience has proved to be right. I wonder if the noble Lord, Lord Livsey, realises that in the 2003 Assembly election the longest regional ballot paper was in South Wales Central, with 12 parties standing and 62 candidates' names on the ballot paper. It is not surprising that some people found that very confusing.
The second vote is acknowledged to be a party vote, and it makes sense that parties should choose who is to represent them and present their choice to the electorate. There is no significant demand, as far as we can see, for a less ordered and more extensive choice of candidates, which, as I say, the electorate have in the past, and may in future, find confusing.
My Lords, the surprising thing about this amendment is that it would amend a Bill, when such provisions are usually dealt with in secondary legislation. The existing secondary legislation that governs the National Assembly makes provision for exactly what this amendment would achieve in the Bill. In fact, the secondary legislation goes further; it imposes an equivalent duty in respect of constituency candidates, which the noble Lord has not mentioned.
In Scottish and European elections, lists are published in subordinate legislation, so why should primary legislation be burdened by this degree of detail when we have never found it necessary with regard to any other assembly or voting system that the British—in fact, the Welsh—people are involved in? We have subordinate legislation that makes provision for lists of candidates and regions. The amendment is not necessary; it is not in the appropriate place. The noble Lord has taken this opportunity to extol the virtues of lists, but what he suggests is already provided for elsewhere. If he wants to effect any change, it should be effected through secondary legislation.
My Lords, I note what the noble Lord, Lord Roberts of Conwy, and the Minister said. However, we are very familiar with the fact that the Assembly's system of election was decided by primary legislation; indeed, we are going to alter it by primary legislation here in both Houses of Parliament. So I cannot accept the point made by the noble Lord, Lord Roberts of Conwy, that the second vote is a party vote and therefore it is satisfactory for the party hierarchy to decide who will be elected. I can see no reason at all why an open list is not much preferable as far as political parties are concerned. Perhaps the political parties are worried that people within their own parties might rock the boat or they might be more focused and get down to some rather hard decisions when they are elected. Lo and behold, perhaps the electorate might rather like that.
The noble Lord, Lord Davies of Oldham, said that secondary legislation could achieve what the amendment sought. That may be the case. He asks why we should be burdened. Well, we have done it before. We did it in the original Wales Bill and we are going to do it in this Bill by suggesting another system. Therefore, I have no compunction whatever about dividing the House on this issue.
moved Amendment No. 6:
Page 5, line 19, at end insert—
"(8) In the event of a candidate's death, the returning officer shall make arrangements for the election in that constituency or Assembly electoral region to be held not more than 28 days after the death of that candidate.
(9) Subsection (8) does not apply if the original date of the election is more than 28 days after the date of the death of the candidate."
My Lords, in the event of the death of a candidate at constituency level the whole regional list is suspended because you cannot total up the votes until you know which candidates have succeeded in each of the constituencies in that region. If the list is not complete in a region, the composition of the Assembly itself will not be known. We have to decide how we are going to fill that constituency vacancy. A candidate has died, therefore the election is postponed.
This happened in England during the previous election, when there was a delay of some weeks before the vacancy, which I believe was in Staffordshire, was filled. We consulted electoral officers to determine how quickly such a vacancy could be filled. It was suggested that you really needed 35 days to nominate a new candidate, print the ballot papers and distribute them, especially to postal voters, before polling day. It was suggested that 35 days would be the ideal. Of course, 35 days is 35 days in limbo for the region and possibly for the Assembly, so we are trying to take one week off those 35 days and make it 28 days. I think possibly it would work, and from the death of a candidate to the election all the procedures could be filled in 28 days. That is the reason for the amendment and for the period that we have specified in the amendment. I beg to move.
My Lords, there was widespread concern at the last general election, when there was a delay to the return for one constituency because of the death of a candidate, so the noble Lord has identified an issue that needs attention. The amendment says 21 days, and we do not think we can achieve that administratively in such a tight timetable, but we do respect the point that a change to electoral arrangements in the UK is sought—
My Lords, we have altered the amendment, and the Marshalled List reads "28 days" and not "21 days".
My Lords, I hear what the noble Lord says, and that helps to a degree. The real reason why I am going to ask the noble Lord to withdraw his amendment, despite the significance of the case that he has put forward, is that this issue is being addressed across the whole of the United Kingdom in the Electoral Administration Bill, which is in its final stages of consideration. Clause 24 of that Bill deals with the death of a candidate at a parliamentary election, and where the election has to be countermanded or abandoned it shortens the delay before a fresh election can be held. It also removes the need to countermand or abandon an election if the candidate who dies is an independent, which was part of the problem identified in the last general election.
I assure the House that my right honourable friend the Secretary of State for Wales plans to make generally analogous changes in an order that will update the rules for conduct of Assembly elections to be made under Section 11 of the Government of Wales Act 1998. The order will be brought forward for approval in plenty of time for the next Assembly elections in May 2007. So the amendment is unnecessary. We are aware of the issue and that there is widespread concern about it. We intend to deal with it in terms of UK elections, and the Secretary of State for Wales will deal with it for the next election to the National Assembly for Wales, in 2007.
moved Amendment No. 9:
Page 8, line 26, at end insert—
"( ) For the purposes of subsection (1), section 2 of the Representation of the People Act 1983 (c. 2) (local government electors) shall have effect as if for subsection (1)(d) there were substituted—
"(d) is of voting age (that is, 16 years or over).""
My Lords, reducing the age at which people can vote from 18 to 16 has been debated in this House in recent weeks. So many things happen to a person when they are 16 years old. These are formative years; you can marry and take on family responsibilities. You can even become a boy soldier at 16 and fight in battle if necessary. It is unfair that someone is able to fight for his country and yet unable to vote for the Government of his country—or the Assembly, as in Wales.
The reality is that people who do not vote not only take themselves out of the voting domain, but are in a way opting out of society itself. The sooner we can get them involved in society, with responsibilities within it, the sooner we might be able to interest them in a way which will last for the rest of their years.
At 16, you change from the school to the workplace, or a place of further education. You become involved in the community. We want 16 year-olds to be involved in the community, not to feel excluded from it. Reducing the voting age to 16 would help to accomplish that wish, that they be part of society and responsible within it. I beg to move.
My Lords, the noble Lord, Lord Roberts of Llandudno, is quite right that this issue has been much discussed in recent weeks, particularly in the context of the Electoral Administration Bill. It has also featured in our earlier discussion on the first day in Committee. My noble friend Lord Norton of Louth said that:
He made a number of other points which I shall not repeat, but he is right that if we change the voting age, it should be UK-wide.
I have also noted the result of the wide-ranging survey conducted by the Electoral Commission and ICM and its result, namely that 64 per cent of the public thought 18 was the right voting age and only 18 per cent favoured a reduction to 16. Their results represented a solid affirmation of the status quo. Yes, of course we want to increase the interest shown by 16 to 18 year-olds in politics generally, but that should come in advance of consideration of lowering the voting age.
My Lords, I recall the debates at the time of the reduction of the voting age from 21 to 18. There was a substantial consensus in favour of that reduction, following a report on the age of majority. I do not see such a consensus on a further lowering of the voting age today. I wonder where this will ultimately lead us. Will the progressive elements in our society continue to lower the age? Where does one go after lowering it to 16? I see no consensus for this and I certainly would not support such a proposal.
My Lords, I reinforce the argument put forward by my noble friend on the Front Bench. There are three points to be deployed in respect of what has been said. First, as my noble friend said, this is the wrong Bill in which to incorporate such a provision. It should be a matter of public policy nationally and therefore should be the subject of national debate.
Secondly, the amendment does not address the problem that the noble Lord mentioned. There is a question of how to involve young people in politics and there is a much wider discussion to be had about how to get people more engaged with political activity. But I do not think that this is the best route for that; it is a far more complex problem than this proposal suggests.
The third problem with the amendment at this stage is that we have heard nothing new compared with what was raised in Committee. We responded to the arguments put forward then, and there is no value-added element in the amendment at this stage. The noble Lord says that 16 year-olds can marry and can become boy soldiers. But that is not the case in the sense that they do not choose to be boy soldiers. It is the Army that chooses them, if they apply, so there is a sifting process before they can exercise the benefits or positions that we permit them to have. On the other hand, voting is an absolute power that can be exercised directly. A significant qualitative distinction can be drawn between the two and therefore there is no clear argument for the proposal.
The noble Lord, Lord Anderson, was right: when the voting age was lowered from 21 to 18, one argument for doing so was that it would get young people more engaged in political activity. However, that has not been the consequence, and I do not see why it necessarily follows that further lowering the voting age to 16 would have the desired effect. Therefore, like my noble friend, I see no virtue in the amendment at this stage.
My Lords, if the age were reduced to 16, it would mean that, depending on when they were born, some people would still not cast a vote until they were 18, given that in Wales there must be elections at least every two years.
My Lords, I follow the argument of the noble Lord, Lord Norton. Fifty years ago, I wrote my first letter to a newspaper to argue the case for voting at 18. I used much the same kind of argument as has been used by the noble Lord in support of the amendment. But there is a difference. In those days, military service was mandatory rather than a choice. Whether you liked it or not, you did your two years' military service. Furthermore, there is rather more maturity of judgment at 18 then there is at 16. Therefore, I think that this is a national matter which should not be rushed.
My Lords, I can only repeat the Government's position, which we made absolutely clear in Committee. I agree with the noble Lord, Lord Norton of Louth, that this Bill is not an appropriate vehicle for reducing the voting age in any British election. While the Government welcome the recommendations of the Power inquiry and its contribution to the debate on democracy in Britain, and while careful consideration will be given to the report and findings, as I said, this is not the vehicle for those concerns. We cannot simply slot in a provision lowering the voting age just for Wales, as my noble friend Lady Gale rightly said when we last debated this amendment. As a number of noble Lords have said, this issue must be debated on a UK-wide basis. I ask the noble Lord to withdraw his amendment, which, as the noble Lord, Lord Norton of Louth, said, is almost precisely the same one as we considered and discussed fully in Committee.
My Lords, I thank the Minister for his response and noble Lords for expressing their views in this short debate. I believe that there is still a strong argument for lowering the voting age from 18 to 16, not least because my noble friend Lord Mar and Kellie said that people would not necessarily vote in the year in which they turned 16. By the time they come to cast a vote they could be 17 or 18 years old. One of my friends on the Front Bench has said that he was 24 years old before he was able to exercise his right to vote. Time elapses between registering to vote and an election taking place.
I am interested to know that there is, at least, a willingness to discuss this further from all sections of the House and to look at it in a UK-wide context. The nations of Scotland, England, Northern Ireland and Wales will all be able to partake in a discussion and move forward at the same time. I would very much like to know that there will be such a debate. With that hope in mind, I beg leave to withdraw the amendment.
moved Amendment No. 11:
Page 17, line 27, at end insert "not belonging to the same political group"
My Lords, under this amendment we consider the Assembly commission. It is important to recognise why we have tabled this very simple amendment. Clause 27 on page 17 sets out what the Assembly commission is all about. It says that there will be an Assembly commission and that,
"The members of the Assembly Commission are to be— (a) the Presiding Officer, and (b) four other Assembly members".
Standing orders also come into play. The Assembly commission has many responsibilities. It is very important that it is independent of the Assembly Government as it will deal with, for example, the payment of civil servants. Schedule 2 refers to many responsibilities of the Assembly commission.
In Scotland it was felt that there should be all-party participation in such a body. When one examines the responsibilities of the commission, it becomes quite clear that it is desirable to have overall representation on it; so when we say,
"not belonging to the same political group", the four other members to whom we refer would be in that category and would be from different political parties. Amendment No. 12 is tabled by the Opposition and is very similar to this amendment. I beg to move.
My Lords, as the noble Lord, Lord Livsey, has made clear, we have tabled a similar amendment, Amendment No. 12. I do not see much difference between the two amendments. If the noble Lord wishes to press his amendment—his amendment comes before ours as it refers to line 27 whereas ours refers to line 29—and if he were successful in having that put on the face of the Bill, we would not move our amendment. Both amendments are directed at the same purpose, which is ensuring that the Assembly commission should remain fairly non-party political.
As the noble Lord made perfectly clear, the Assembly commission's duties, which are set out in the Bill and in the Explanatory Notes, are essentially non-political; they are practical duties relating to the running of the commission. Therefore, we think it is right that as far as possible as many different parties should be represented on it. For that reason, it might be that our amendment is marginally better because it states:
"so far as is practicable".
But it is only marginally better, and we are prepared to support the amendment standing in the name of the noble Lord, Lord Livsey, if he wishes to press it to a vote at the appropriate moment.
My Lords, I put my name to Amendment No. 12, but the decision about which to support was difficult and I made my choice on the basis of the wording. As a Cross-Bencher, I had to make my mind up. The principle behind these amendments is incredibly important. If we are to have a commission that has a degree of neutrality, it is essential that there is the broadest representation. I hope that it will embrace all the parties. I was not convinced that the Bill would do that without this amendment.
My Lords, as we have heard, Amendments Nos. 11 and 12 insert a requirement that the standing orders of the Assembly specify that the members of the commission, other than the Presiding Officer, should not belong to the same political group.
As we have previously argued, the Government simply do not see it as necessary to place this requirement on the face of the Bill. Indeed, I understand that the Assembly has already established a shadow Assembly commission to begin to plan the work it will be required to do after next May's elections, and I hope that noble Lords will be greatly reassured to know that it has one member from each of the four political groups represented in the Assembly.
There is also no equivalent requirement in place for the Scottish parliamentary corporate body, the House of Commons Commission or, indeed, for the Northern Ireland Assembly Commission. As the Assembly appears to be mature enough to have reached this conclusion of its own accord, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I thank noble Lords who have spoken. I thank the noble Lord, Lord Henley, for his support. As he said, there is very little difference between my amendment and his. We believe that it is necessary to do this. I understand what the Minister said, and there is no doubt that at the moment the situation is very equable and people are getting on and ensuring that there is a Member from each party. I think it is—na-ve is probably the wrong word to use, but who knows what will happen in future as far as the commission is concerned? I think it is appropriate to divide the House on this and put into place what is a fact already. It is right and proper to have Members of different political parties on the commission by right. Therefore, I wish to test the opinion of the House.
moved Amendment No. 13:
Page 18, line 24, leave out subsections (2) to (9) and insert—
"( ) The standing orders shall include provision for ensuring that in apportioning members to committees and sub-committees regard is had to the balance of political parties represented in the Assembly."
My Lords, Amendment No. 13 relates to Clause 29, which deals with the composition of any committees set up by the National Assembly for Wales. We debated this issue at considerable length in Committee and I do not intend to repeat all the arguments put forward at that stage. I can briefly sum up our objections—I imagine the same will be true of the Liberal Democrats' objections, but we will hear from the noble Lord, Lord Livsey, in due course. They are, first, that Clause 29 is overly prescriptive and, secondly—and I think more importantly—that it is a fix to give the largest party, which happens to be the Government party, the Labour Party, an unfair share of the membership of the committees that are set up.
In Committee we put forward all the arguments about what I described as the, "overly prescriptive" nature of Clause 29, which brings in the d'Hondt mechanism for counting committees, giving an undue proportion of members to the ruling party, the Labour Party. I set out the figures showing how the relatively small-sized committees—and they have to be relatively small, bearing in mind the size of the Assembly—meant that d'Hondt provided an even more unfair system than anything else. We feel that this is overly prescriptive and that possibly the best way to deal with the matter is to leave out Clause 29 and leave it to the Assembly to decide on the composition of its committees.
However, if we are going to have a Clause 29, we feel that it should be a much simpler version of affairs. The best way of dealing with that is to leave in subsection (1), remove subsections (2) to (9)—virtually the whole of the clause—and replace them with the words in Amendment No. 13:
"The standing orders shall include provision for ensuring that in apportioning members to committees and sub-committees regard is had to the balance of political parties represented in the Assembly".
It is as simple as that, and we can leave it to the Assembly to decide what it does.
In Committee—it is right that I should say something about this—the noble Lord, Lord Davies of Oldham, spoke for the Government and defended Clause 29 and the d'Hondt principle. He said:
"So the d'Hondt principle is simply a formula that gets as close as possible to the appropriate levels of fairness".
I do not accept that. I think that the Members themselves can get a much better level of fairness than D'Hondt gives us, as we know from all the figures that d'Hondt will provide with the relatively small size of committees.
The Minister went on to say that Clause 29 was, in effect, merely a voluntary clause and did not bind the Assembly. He said:
"The formula is there against the eventuality of deadlock. I do not see why this is an intrusion on the Assembly".
Further, he said:
"I emphasise that it is not dictation. It does not dictate to the Assembly. If the Assembly can reach agreement on its committees, the d'Hondt formula . . . does not come into play".—[Hansard, 19/4/06; col. 1135-37.]
All the noble Lord can suggest in favour of the argument that the clause is voluntary is subsection (8), which says that the Assembly may disapply subsections (2) to (7) but only if it has a two-thirds majority for so doing. In other words, there is a very comfortable blocking minority for the Labour Party preventing that applying and allowing it to go on using d'Hondt, which gives it an unfair advantage.
As I said, I found extraordinary the Minister's defence in Committee and his claims that the clause was in effect voluntary. I invited him in my closing remarks to be good enough to look carefully at everything that he had said, which no doubt he has done, especially about the voluntary nature of the provision, and have a word with officials to see whether they could draft amendments to bring the clause into line with what he said.
No doubt the Minister has done that and will tell us about those discussions, but I regret that he has not come forward with any amendments intended to do what we and the Liberal Democrats seek to do. Therefore, I have brought my amendments back and I certainly intend to press them in this case unless the Government can give a very clear response to our real concerns about the membership and composition of the committees. I beg to move.
My Lords, we, too, have tabled an amendment about the committee system and are critical of the d'Hondt method of allocation. Our amendment is somewhat longer than the Conservative amendment, but it amounts to a similar conclusion. It states:
"The members of any committee established by the Assembly under section 28(1)—
(a) shall be elected by the Assembly from among the Assembly members, and
(b) shall, unless that committee exists solely to provide advice, be elected so as to secure that, as far as is practicable, the balance of the parties in the Assembly is reflected in the membership of the committee".
I say again that the Presiding Officer of the Assembly, the noble Lord, Lord Elis-Thomas, is unable to be with us this evening. This is the one amendment to which he would have spoken and supported. I want the House to know that that is the case.
Provision for fair representation on the Assembly by removing the d'Hondt process is necessary. Essentially, d'Hondt is a very crude form of proportionality. The greater the number of parties, the greater the likelihood of distortion. The d'Hondt, or highest average, method of course originated in Belgium. Unlike the single transferable vote, it does not use a quota or formula to allocate seats or posts. Instead they are allocated singly, one after another. The basic idea is that a party's vote total is divided by a certain figure, which increases as it wins more seats. That underlines what the noble Lord, Lord Henley, said. It favours the largest party considerably. As the divisor becomes bigger, the party's total in succeeding rounds gets smaller, allowing parties with lower initial totals to win seats.
We strongly believe that it is necessary to remove the d'Hondt process to achieve balance within the Assembly committees. As I said in Committee, it is significant that the Scottish Parliament has abandoned that system of allocation to committees on the basis that it was unfair and has come to an agreement whereby there is a fair allocation from all parties on the committees of the Scottish Parliament. There is a majority view that the d'Hondt method is not the best. We want to remove it and we will support the Conservative amendment.
My Lords, I added my name to the amendment having spoken to many people in the Assembly. In Committee, the Minister insisted that Clause 29 was to be only a fall-back position, but that cannot be reconciled with the Bill as currently worded. Clause 29 provides for all Assembly committees to be established using the d'Hondt formula, unless the Assembly resolves by a two-thirds majority to disapply that requirement. That does not seem to tally with the notion of a fall-back position. It would mean that every time that the Assembly wanted to establish a committee or sub-committee, a Motion would need to be tabled to disapply the requirements of the Act and Standing Orders if an alternative structure was required. That seems overly burdensome. Determining the size and structures of Assembly committees should definitely be within the preserve of the Assembly. The Bill takes an overly restrictive approach, quite apart from the results that will accrue, which have already been discussed in Committee.
I emphasise that I have been hearing about considerable opposition to the measure, both in this House and in the Assembly. It is a pity that the Government have been unable successfully to make the case for that change. Nor have they been able to refine the Bill through a government amendment to address the concerns that I initially raised at Second Reading and were subsequently raised in Committee.
My Lords, I have a great deal of sympathy with the amendments. In this context, the House should aim to avoid, on the one hand, rigidity and, on the other hand, a situation where it seems that the Welsh Assembly is not trusted to run its own House properly and in order.
As for rigidity, there is no doubt that the d'Hondt system could lead to distortions. That would do no credit to the Welsh Assembly. It is an immensely complicated system. I have never yet met anyone who is totally confident that he or she understands it. It was said of the Schleswig-Holstein dilemma in the mid-19th century that only three persons ever understood it. One of them had died, one had gone mad and the third had forgotten everything about it. It may or may not be that three persons ever understood the d'Hondt system, but it is flawed and not worthy of the Assembly. The Assembly can properly exercise its proper discretion in that connection.
I said a short while ago with regard to the Presiding Officer, my noble friend Lord Elis-Thomas, that he was a fascinating politician, but that I did not always accept his views as infallible. In this matter, I wholeheartedly agree with him, and he is in a very good position to judge exactly how it should be handled. I very much hope that the Government will be sympathetic to the views of those in favour of the amendments. The noble Lord, Lord Davies of Oldham, was not correct in Committee. It is not a case of being able to contract in to a system; there is a loophole to contract out of it, which is a very different matter.
My Lords, the noble Lord, Lord Livsey, mentioned that the Scottish Parliament has moved to a simpler system of arriving at committee structure by agreement. When considering this matter, the House must bear in mind that a lot of people will watch committees of the Assembly when they legislate for primary legislation. They will be interested in the issue, as happens in Scotland. If the public see votes going on in a complicated system about how a committee should be made up, with wrangling and argument, they will not like it. I suggest that it is very much in the interests of the Assembly to have a much simpler system in which Members agree among themselves, so that there will be no wrangling in public.
We in this House should consider the point of view of the electorate much more than we have so far today. Listening to the discussion about voting systems, I was horrified that it is all about what elected Members feel about how it all works and what is the theory, and nothing about what it looks like to the electorate. That is a very important point, so I support my noble friend's amendment.
My Lords, let me begin by stating that we are on common ground. We want the committees of the Assembly to be established according to fair principles. Let me disabuse the House of any false notion about this formula. I say to the noble Lord, Lord Elystan-Morgan, that Schleswig-Holstein was a dispute about which territories belonged to which kingdom. It is a pity that it has a foreign name, but d'Hondt is merely a dispassionate formula that is widely used to deal with a problem. It is ridiculous to suggest that other parliamentarians in other Assemblies have used it when they know that it is corrupt, biased and flawed and that it discriminates against smaller representations. That is not so. They use it because there is a problem that needs to be overcome.
Why does the British Parliament not use the formula? It does not use it because, on the whole, the majority party in elections to the British Parliament is pretty clearly defined. That is why we have a defined government as a result of British general elections. It is also the reason why some of us in earlier debates had reservations about STV and the problems that it throws up. It is clear how one sets up committees in the British Parliament, and the formula used in another place, which is also used here, is based on agreed principles relating to the size of the parties in Parliament.
The problem with Wales is straightforward; there will not necessarily be a majority. In fact, it is quite often likely that there will be no majority. There is a balance and a range of positions in Wales, which are reflected in an electoral system that is guaranteed to be fully representative, thereby producing nothing quite so dramatically clear. There is therefore no easy numerical formula to apply to the question of how one arrives at the composition of committees in quite the same way in which it is applied in the other place in the UK Parliament.
The presumption must be that men and women of good will will try to set up committees that are reasonably and properly representative. Nothing in Clause 29 prevents that process. Our fellow citizens in Wales who are elected to the National Assembly must have the same presumption of reasonableness that our elected representatives have in the other place. They will have no more difficulty, much of the time, in achieving a fair distribution in their committees by agreement. If they do have such a difficulty through the usual channels, nothing like d'Hondt ever comes into play. They carry out the normal political process of reaching agreement. However, they might not reach such agreement and bargains might not be struck through that formula because there is not necessarily a large majority party in Wales.
The amendment tabled by the noble Lord, Lord Henley, who upbraids me by suggesting that I have not solved this problem, leaves a huge problem itself. Under his amendment, what would happen if agreement could not be reached? There is no fallback in his amendment. It presumes that the composition of committees is arrived at through a process of good will. The Government are a little more farsighted than the noble Lord's amendment. We want, hope and expect committees to be set up in sweet reasonableness on the basis of the relative size of the parties in the House, but if they are not, and if agreement cannot be reached, the question is: who decides? How is the problem solved? This problem is almost as knotty as Schleswig-Holstein. The amendments of the noble Lords, Lord Henley and Lord Livsey, ignore that. They take out the d'Hondt formula but put nothing else in its place, so we are left with stalemate if there is disagreement. The noble Baroness, Lady Carnegy, indicated that endless wrangling about the composition of committees might be to the detriment of any Assembly. It is not an edifying sight, and not something that Assemblies want to spend a great deal of time on, although they sometimes do. They certainly do not want a great deal of public interest in the problem.
All the d'Hondt formula does is to indicate how the composition of committees is to be arrived at if there is no agreement. That is why it is a fallback. I said that in Committee, and I reiterate the point today. That is exactly what it is. Nothing prevents the Assembly setting up its committees under any formula or proposition it likes, provided of course that it has total, or at least two-thirds, agreement on the position. If agreement is reached, even if it is not total, there is no problem. If there is severe disagreement and the problem cannot be resolved, d'Hondt says, "Here is a fallback formula that will define how the committees will be established in those circumstances".
It is suggested that the d'Hondt formula is biased against smaller representations in the Assembly, but that is why Clause 29, which the Opposition seek to amend, ensures that every Assembly Member—including independent Members, those belonging to smaller parties, and even those who belong to a party of one in which they are the sole representative—could be entitled to a place on the committee, subject to there being enough committee places to make that possible. There is respect for the minorities.
The d'Hondt formula is, of course, also easier to operate among larger numbers, because how can you operate any formula of proportionality in a committee of one? You cannot create a fraction of one, so of course committees must be of a certain size before the formula works entirely fairly. Indeed, the formula produces exactly the same representation in a committee of 10 as it does in current Assembly committees with 10 members, so the formula and the agreed process that has produced a committee of 10 in the Assembly both produce exactly the same representation as the Assembly in its wisdom has arrived at. If the Assembly in its wisdom arrives at that without any application of any formula, it is entirely free to do so. Nothing in Clause 29 prohibits that.
Clause 29 addresses the Schleswig-Holstein question. When the going gets difficult and agreement cannot be reached, there are only two solutions: stalemate, which the noble Lords, Lord Henley and Lord Livsey, blithely say they do not mind, despite the warnings of the noble Baroness, Lady Carnegy, that stalemate in the Assembly and endless problems over committees might do the Assembly's reputation no good at all; or a formula. That is the defence of d'Hondt and of Clause 29. I hope that noble Lords opposite will recognise that this is a proper and democratic defence in a clause that allows the Assembly to take its decisions but resolves disagreement where it occurs. It behoves noble Lords who propose amendments to say what they would do about disagreement. Their amendments do not refer to that at all.
My Lords, before the noble Lord sits down, and with the leave of the House, he suggested that what I was saying would produce chaos. There is no reason whatever why the standing orders which the Assembly would agree should not make provision for what happens when there are problems—probably a simple vote of the Assembly. The amendment leaves this to the Assembly. It does not prescribe it in the Bill. The noble Lord is wrong to say that the alternative is chaos.
My Lords, I did not say that what the noble Baroness had expressed was chaos. She had indicated the costs of chaos. It does not do an Assembly a great deal of good to have endless wrangling over its committees. I am merely indicating that, because the nature of the composition of any foreseeable National Assembly for Wales will provide a balance between parties, there has to be a formula for a resolution which we would all recognise. Otherwise there could be a tricky, not to say impossible, problem to resolve. That is the difficulty with the amendment, which is why the noble Lord should withdraw it.
My Lords, I have to say to the noble Lord that that was a nice try, but it simply will not wash. The essential argument put forward by the noble Lord is that Clause 29 is voluntary by its nature; that is, people will get round in a friendly way to decide on the committees and, if that breaks down, they would then have to use d'Hondt. The noble Lord obviously is not reading the clause that I am looking at. Clause 29(1) states:
"The provision included in the standing orders in compliance with section 28 . . . must meet the requirements of this section".
Subsection (2) states:
"The provision must secure", and I could go on.
However, the noble Lord, Lord Elystan-Morgan, put it in much simpler terms, which I shall repeat. This clause is essentially about contracting out by the rather difficult subsection (8) whereas the noble Lord is implying that it is about contracting into d'Hondt if there are problems. That is not the case. We believe that ours is a better approach. If there are any problems, it essentially leaves these matters to the Assembly to decide in its standing orders. For that reason, I should like to test the opinion of the House.
My Lords, in moving Amendment No. 15 I shall speak also to the other five amendments in the group. The Minister will see that in addition to my noble friend Lord Roberts of Conwy, the noble Lords, Lord Livsey of Talgarth and Lord Roberts of Llandudno, have added their names to the amendment. I am grateful to them for their support.
Put simply, the amendments are designed to save the new arrangements for government in Wales from an unwieldy bit of language. Clause 30 states that there has to be a committee known as the "Audit Committee", and Clause 142 sets out what it must do in terms of considering accounts and the Auditor General's reports, and laying reports on them before the Assembly. As we debated in Committee, the functions set out in Clause 142 are virtually the same as those which apply to the Public Accounts Committee in another place. The term "Audit Committee" is used widely in both the public and private sectors with a slightly different meaning in each. In the public sector, the Treasury talks of the audit committee in terms of supporting the accounting officer in matters of risk, control and governance, while in the private sector the audit committee has a role acting on behalf of the board to oversee and review financial statements and financial controls. None of this usage is like Clause 142, which makes Clause 30, at the very least, confusing.
All these points were made by the Auditor General for Wales to the Assembly committee which considered the Bill, and the committee concurred with the Auditor General. That is why Amendment No. 15 would take out the name "Audit Committee". It is simply the wrong name. The amendment does this by replacing it with "Accounts Committee" which is similar to "Public Accounts Committee". However, the amendment goes further and provides that the name may be changed through the Assembly's standing orders. It is surely wrong in principle to hardwire any title of a committee into an Act. This amendment allows for future change if the Assembly thinks fit.
It is true that the current arrangements in Wales feature an audit committee, but that is not an argument to enshrine it for all time in this Bill. It is also true that the Scottish Parliament uses the title, but I understand that this is achieved entirely through its standing orders and there is no compulsion as to name or even the nature of the committee in the Scotland Act. This amendment is plain common sense. I beg to move.
My Lords, as the noble Baroness has said, the situation is analogous to a public accounts committee rather than an audit committee. I am aware that there may be problems from the point of view of the Assembly which the Minister may refer to, but he will have to seek to justify the comments of the Assembly auditor, who has some doubts about the wisdom of the committee being called by this name. We shall listen carefully to what the Minister has to say. We believe that the general direction of the amendment is correct in accounting terms and is easy to understand because we all know what a public accounts committee is. It is a body independent of the executive which can examine issues in the accounts and verify them in a searching way. At the moment, we support the amendment.
My Lords, as I outlined in Committee, we firmly believe that this is a matter for the Assembly. Indeed, I am slightly mystified by the remark of the noble Lord, Lord Livsey. If I heard it correctly, he implied that the Assembly auditor wants this change. I can tell him that in its consideration of the Bill, the Assembly has expressed a view that a name similar to that of the Public Accounts Committee should be avoided and that it is happy with the name of the committee as set out. The Government believe that the Assembly should be able to initiate a change of name for a committee if it chooses to do so. Under Part 3 there is a clear mechanism by which the Assembly may achieve this. It may apply for an Order in Council to confer legislative competence on the Assembly to reform the name and functions of the Audit Committee by Assembly measure, but I wish to stress the point to the Liberal Democrats that this is the name the Assembly wants for the committee; it does not want a change.
Furthermore, as I attempted to explain in Committee, Amendment No. 15 inserts a provision that the Assembly may give the Audit Committee,
"any other name . . . through its standing orders".
That is simply not practical. Standing orders could not authorise the Assembly to change references to the Audit Committee in other legislation such as the Care Standards Act 2000. This would cause legal inconsistency and confusion, none of which would be in the public interest. As I acknowledged in Committee, it is very important for the Audit Committee's role to be made clear; that is, to scrutinise the use of financial resources by Welsh Ministers and the other persons and bodies funded out of the Welsh Consolidated Fund, and to hold those persons and bodies to account. The people of Wales have not had any difficulty in understanding that this is the role of the current Audit Committee. Given that we are talking about an Assembly and about something that it wants, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank the Minister for that reply and I thank the noble Lord, Lord Livsey, for his support. If the Assembly wants to have a name other than the one it is given in the Act, it ought to be able to achieve that by a mechanism a lot less cumbersome than applying for an Order in Council. I am sure the Minister will be aware that the chances of getting that pushed through are pretty remote. If the Minister had said that he was prepared to produce an amendment to Schedule 5 to the Bill to allow a measure-making power, that might have been an acceptable response. But he does not want to do that. The Minister wants to impose the name "Audit Committee" for a good length of time on the Welsh governance arrangements.
I do not believe that the issue of cross-reference to other legislation is insuperable. Amendments could be used to deal with existing legislation and future legislation needs only to refer to the committee required by Clause 30. These are not substantive reasons for not pursuing this matter. I beg leave to test the opinion of the House.
moved Amendment No. 19:
Page 20, line 4, at end insert—
"(1A) The standing orders must include provision for the scrutiny and approval of the budgets of—
(a) the Assembly Commission,
(b) the Auditor General,
(c) the Public Services Ombudsman for Wales,
(d) the Children's Commissioner for Wales,
(e) the Commissioner for Older People in Wales, and may include provision for the scrutiny and approval of the budgets of any other specified body or person which is funded from the Welsh Consolidated Fund."
My Lords, in moving Amendment No. 19, I shall speak also to Amendment No. 74. With these amendments, I am returning to issues we debated in Committee about the extent to which certain budgets can be protected against the Executive.
Amendment No. 19 would add a new subsection (1A) to Clause 31, which says that the standing orders which are the subject of Clause 31 have to include provision for the scrutiny and approval of the budgets of five named persons or bodies: the Assembly Commission, the Auditor General, the Public Services Ombudsman, the Children's Commissioner and the Commissioner for Older People in Wales. It also says that other bodies can be added to this list.
I do not think that Amendment No. 19 itself is very controversial; it merely specifies some matters that will, for the most part, be covered by the standing orders to be drawn up under Clause 31. We know that the audit committee will deal with the Auditor General's estimates, as set out in paragraph 12 of Schedule 8. The Minister told us in Committee that standing orders would have to deal with estimates for the Assembly Commission and for the Public Services Ombudsman; that is dealt with in paragraph 85(12) of Schedule 10.
The addition of the two commissioners—for children and older people—raises slightly different issues. The Care Standards Act 2000 requires the Children's Commissioner's estimates to be considered by the executive committee and laid before the Assembly. Paragraph 28 of Schedule 11 to the Bill currently passes this function to Ministers, thus diminishing the role of the Assembly.
The Commissioner for Older People in Wales is covered by a Bill which is before another place, but that has the financial estimates being put before the Assembly Cabinet. My amendment is to this extent designed to ensure that there are proper scrutiny provisions so that Assembly Members can oversee the funding of the commissioners.
I am aware from our debate in Committee that the Government want to pursue a non-departmental public body model for the two commissioners, which gives Parliament only a very indirect say in the funding that goes to such bodies. That model works very well all the time that the Government give the bodies enough money to allow them to pursue their functions properly. But when the Government impose a financial squeeze—which often happens, whether for good reasons or bad—Parliament, in the case of the UK, or the Assembly in Wales, would be left without an effective voice. I believe that the Government's preferred solution is in contrast to the position for the equivalent commissioner for children in Scotland, where I understand that funding is determined by the Scottish Parliament, not Ministers.
The meat of Amendment No. 19 is found in Amendment No. 74, which amends Clause 124, the clause that provides that annual budget motions have to be presented by a Welsh Minister. At present, the Bill would allow that budget motion to include amounts which were not enough to allow the various persons listed in Amendment No. 19 to do their work effectively. My Amendment No. 74 would in effect protect those budgets once they had been scrutinised and approved.
In Committee, the Minister said that if Assembly Members do not like what Welsh Ministers put forward, they can reject the budget motion. But that is using a sledgehammer to crack a nut; it is not practical, everyday politics. However, there is a practical, everyday reason to ensure that important parts of the constitutional arrangements for Wales are properly funded. That is why my Amendment No. 74 says that the annual budget motion has to include the amounts approved under proposed subsection (1A) of Clause 31, as inserted by my Amendment No. 19.
The Minister's response in Committee was surprising in the light of the Latimer House guidelines, which followed an initiative by Commonwealth heads of government in 1998. The guidelines state quite clearly:
"An all-party committee of Members of Parliament should review and administer Parliament's budget which should not be subject to amendment by the executive".
This clearly applies to the funding of the Assembly Commission and, I argue, must also apply to constitutional officers such as the Auditor General and the ombudsman. Will the Minister say why the Government have chosen to ignore the Latimer House guidelines in the Bill?
We believe that there should be no room in the annual budget motion for the Executive to decide to put less money than in the budgets for bodies. The budget motion must fund them to the extent of approved budgets. That is a matter of principle. I beg to move.
My Lords, we have a great deal of sympathy with the amendment. It is important that the budgets are properly approved under the guidelines. The bodies listed in the amendment are important and should not be underfunded. I am sure that that would not happen but it is important to ensure that the money goes where it should and that it is there, as agreed. It would be an extremely sensitive matter if proper provision were not made for the Children's Commissioner for Wales and the Commissioner for Older People in Wales.
Scrutiny and approval of the budgets are important, particularly in relation to the Welsh Consolidated Fund. As we were saying on an earlier amendment, the Assembly Commission has a function in this respect, as provided for in Schedule 2.
We support the amendment; it is the right and proper way to proceed in relation to these bodies.
My Lords, we appreciate the aim of the noble Baroness in tabling Amendments Nos. 19 and 74 to ensure that there is proper and informed democratic control by the Assembly of the budgets for the persons and bodies listed in the amendment. I reassure the noble Baroness, however, that these amendments are not necessary.
On Amendment No. 19, adequate pre-budget scrutiny procedures for the Auditor General and the ombudsman are already provided for in the Bill. The Auditor General's estimate will go to the Assembly's Audit Committee, as it does now, by virtue of paragraph 12 of Schedule 8 to the Bill. The Audit Committee will receive that estimate at least five months before the beginning of each financial year. The committee must examine it and then lay it before the Assembly. It may modify the estimate before doing so, but only after prior consultation with the Auditor General.
The estimate procedure for the Public Services Ombudsman is set out in paragraph 15 of Schedule 1 to the Public Services Ombudsman (Wales) Act 2005 as amended by paragraph 85(12) of Schedule 10 to this Bill. Under that procedure the ombudsman's estimate will go to one of the Assembly's committees, which the Bill requires to be specified in Standing Orders. The procedure is otherwise identical to that for the Auditor General's estimate. The committee will receive the estimate by
Turning to the Children's and Older People's Commissioners, as discussed in Committee, the mechanism specified in the Bill is the same in principle as the mechanism already established for the Children's Commissioner. The splitting of the legislature from the executive will formalise and clarify the Assembly's role in scrutinising the Welsh Ministers. As part of that role, Assembly Members will have the power to scrutinise the Welsh Ministers' budget. They will be aided in scrutinising the part of it that relates to the Children's Commissioner by the provision of an estimate, as provided for in paragraph 6 of Schedule 2 to the Care Standards Act. Similarly, paragraph 9 of Schedule 1 to the Commissioner for Older People (Wales) Bill will provide for the Assembly to be aided in its scrutiny of the part of the Welsh Ministers' budget that relates to the commissioner by the provision of an estimate. If Assembly Members are not satisfied that the commissioner is receiving adequate funding, they will be able to hold the Welsh Ministers to account, thus ensuring that there is proper and effective political and democratic accountability.
Amendment No. 74 would require Welsh Ministers to include in the annual budget motion those amounts which have been approved by the Assembly for the Assembly Commission, the Auditor General, the ombudsman, and the Children's and Older People's Commissioners during the pre-budget scrutiny process that would be imposed on standing orders by Amendment No. 19. It is a key responsibility of the Welsh Assembly Government to plan and put forward a budget to deliver the commitments it was elected on, and to maximise the benefits of utilising those resources on behalf of the taxpayer. Limiting the discretion of the elected Government to do that runs counter to our very system of government.
With great respect, we think this amendment goes too far by allowing the estimates laid before the Assembly in respect of those persons and bodies to dictate the content of the annual budget motion. In the Government's view, the proper relationship is that the estimates are provided to aid the Assembly's scrutiny of the annual budget motion moved by the Welsh Ministers under Clause 124(1). It is a well established constitutional principle that it is for the executive to request resources and for the legislature to consider whether or not to authorise them.
In moving an annual budget motion on behalf of themselves, the Assembly Commission, the Auditor General and the ombudsman, the Welsh Ministers are inviting the Assembly to allocate a finite amount of resources in the annual budget motion. If, having had the benefit of considering the estimates for the persons and bodies listed above, the Assembly is not satisfied with the amounts proposed in the annual budget motion, it can reject it. On that basis we believe the Bill already provides a proper and effective mechanism for informed, democratic control.
The noble Baroness, Lady Noakes, asked about the Latimer House guidelines. The Government are aware that clause 6 of part 6 of the principles of the Commonwealth Parliamentary Association provides that,
"An all party committee of Members of Parliament should review and administer Parliament's budget which should not be subject to amendment by the Executive".
The Assembly's Standing Order Committee has agreed the principle that, where appropriate, the committee should take account of those guidelines in drawing up its recommendations for the Assembly's new standing orders. The Government do not believe that the mechanism under the Bill would be in any way inconsistent with the Latimer House guidelines. Ultimately the budget for the Assembly Commission is voted on by the Assembly itself as a separate and distinct part of the annual budget motion. If the Assembly is not satisfied that the amount proposed in that motion is sufficient for the commission, the Welsh Ministers risk losing their budget motion. The Assembly has the right to keep rejecting the annual budget motion until it is satisfied that the amount allocated to the commission is sufficient.
I hope, with the explanation I have given, that the noble Baroness will be able to withdraw the amendment.
My Lords, I thank the Minister for that very detailed reply, and I thank the noble Lord, Lord Livsey of Talgarth, for his support for my amendments. I will study carefully what the Minister has said and see the extent to which what he has said has clarified the issues, but my instinct is that the solution that he offers is still that the Assembly says it rejects the whole budget motion if there is an issue about the precise amount of resources being allocated to the bodies I am seeking to protect by these amendments. As I suggested earlier, that does not seem a practical solution to a real issue, and I am not convinced that it is consistent with the spirit of the Latimer House guidelines, which should prevent the Executive from trying to impose a lower-resourced requirement. I will think carefully about what he has said and take further advice before Third Reading. On that basis, I beg leave to withdraw the amendment.
My Lords, in speaking to Amendment No. 20 I shall also speak to the other government amendments grouped with it. These are all minor and technical amendments.
Amendments Nos. 82 and 107 make provision necessary as a consequence of other legislation. Amendments Nos. 83 and 110 save provision made by Order in Council under Section 22 of the Government of Wales Act 1998. Amendments Nos. 84 to 101 make consequential amendments to the Public Services Ombudsman (Wales) Act 2005 that arise from the split between the legislature and the Executive. They include grammatical corrections consequent upon other amendments made by the Bill.
Amendments Nos. 102 and 108 concern the designation of the Assembly Commission as a Crown body for VAT and other purposes. In practical terms, they will enable that designation to come into effect as soon as the commission assumes its functions. Amendments Nos. 111 to 114 provide for Assembly procedures to apply to the making by the Welsh Ministers of subordinate legislation.
Amendment No. 115 is necessary to ensure that amendments to other legislation made both by and under the Bill—that is, made on the face of the Bill and by order after enactment—are covered by the transitional provisions in Schedule 11. Finally, Amendment No. 117 reflects amendments made elsewhere in the Bill. I beg to move.
My Lords, I am grateful to the Minister for having given us a synopsis of these amendments, which are indeed numerous. I went through his written account of the implications of the amendments. Although I sometimes thought that certain matters were not so much technical as deserving to be pursued in greater depth, as soon as I began such a pursuit, I quickly realised that they could be described as technical after all, so I have no further comment to make on the amendments. I am also grateful to the Minister for selecting certain other government amendments, which we will come to later—they will receive special attention.
My Lords, we on these Benches also accept these technical amendments. We are grateful to the team who scrutinised the Bill for dotting the "i"s and crossing the "t"s and we have no reason whatever to oppose the amendments.
moved Amendment No. 21:
Page 21, line 12, at end insert—
"( ) This section ceases to have effect on the day on which the Assembly Act provisions come into force."
My Lords, we discussed this amendment with the group Cymru Yfory—Tomorrow's Wales—which is concerned that the section,
"ceases to have effect on the day on which the Assembly Act provisions come into force".
The amendment foresees the granting of full legislative powers to the Assembly and would in that situation remove the right of the Secretary of State to sit in the National Assembly plenum and its committees when the Assembly gets full legislative powers. While continued attendance by the Secretary of State remains a necessary feature of the transitional phases of devolution, and we can all see the need for that, any need for this disappears when the Assembly acquires legislative powers of its own. There is of course no right for the Secretary of State or any outsider to sit in the Scottish Parliament. I would be happy to hear the Minister's comments on the ideas that have come from Tomorrow's Wales.
My Lords, when the Bill becomes an Act, it will increase the potential primary legislative powers of the Assembly, but what would be the point of an amendment that took away from the people of Wales a voice in the Cabinet? A great deal of legislation is not devolved to the Assembly, even if the whole of Part 4 is in operation. Many essential public issues which are debated in Cabinet and are subject to the decision of the United Kingdom legislature would have no specific Welsh contribution. I cannot see the gain to the people of Wales in that. We are all in favour of those proposals which emphasise the enhanced potential powers of the Assembly and the move to greater devolution, but I cannot see why on crucial issues—defence, economic, fiscal and monetary policy, immigration, civil and criminal law, none of which is a devolved matter—the Secretary of State for Wales should have no contribution in the Cabinet on behalf of the people of Wales. I cannot see how that would serve the interests of the people of Wales and I hope that the noble Lord will recognise that and withdraw his amendment.
My Lords, I, too, see a role for the Secretary of State for Wales, particularly with regard to what the noble Lord, Lord Roberts, just said. It was a very cogent point. The negotiation of the block grant for the Assembly is extremely important. The amendment recognises that in the transitional phase of devolution, as the Assembly moves towards full legislative powers, we see a role for the Secretary of State, but the amendment is looking more at the process as a timetable of events. I am interested in what the Minister said and I beg leave to withdraw the amendment.
My Lords, this amendment comes from the same source. The Bill allows the Secretary of State the discretion to decide whether to consult the Assembly about Bills in the UK Government's legislative programme. It seems inappropriate for the Secretary of State to decide whether the Assembly should be consulted; that should be a matter for the Assembly itself. We feel quite strongly about that. The amendment transfers the power to determine whether consultation with the Assembly is unnecessary from the Secretary of State to the Presiding Officer in this instance. The Assembly should be the locus of power in this respect. It would enhance the Assembly's role. I beg to move.
My Lords, I am grateful to the noble Lord for the way in which he moved the amendment, but he will recognise that the provisions contained in Clause 33 are similar to those contained in Section 31 of the Government of Wales Act 1998, which are unique to the devolution settlement for Wales. The arrangements already in place ensure that the Assembly has an opportunity to express views on proposed legislation that affects its responsibilities.
Under the devolution settlement established by the 1998 Act, it has been essential for the Assembly to be consulted on the UK Government's legislative programme, because primary legislation has in many instances conferred new executive functions on the Assembly. In addition, Bills in this current Session have included framework provisions, giving the Assembly wider and more permissive powers to determine the detail of how the provisions should be implemented in Wales—an example is the NHS Redress Bill, which has recently been scrutinised and passed by this House.
Under this Bill, the consultation provision will continue to be important, as Parliament will still enact primary legislation that affects the Assembly's responsibilities. That is why the provision has been carried forward; to enable these successful contacts to continue.
The existing arrangements have worked well to date, and there is no reason why they should not continue to do so. The provision gives the Secretary of State some discretion, because there is a need for the Assembly to be able to express a view only on areas where it has some responsibility. Bills on matters for which the Assembly clearly has no responsibility, such as an Armed Forces Bill, can be excluded from the consultation. But omission from the Secretary of State's consultation does not prevent Assembly Members expressing views on other Bills included in the Queen's Speech during the Assembly debate on the legislative programme—in which, of course, the Secretary of State takes part. I think that that is a valued power for the Assembly.
The provision concerns the legislative programme of the UK Government. The Bill rightly provides that it is for the UK Government to determine what consultation on their own programme should be undertaken. The Assembly or the Presiding Officer will not be in a position to determine what Bills are relevant to its responsibilities and, therefore, what consultation is appropriate. This could well result in the consultation becoming far less effective because, instead of concentrating on Bills that relate to the Assembly's responsibilities, the Assembly would in practice have to require consultation on pretty well everything.
My Lords, can the Minister confirm that only the Secretary of State would be in a position to know the UK Government's legislative programme and therefore impart some knowledge about it to the Assembly? The Assembly and the Presiding Officer would not be in a position to know the legislative programme of the UK Government.
No, my Lords, they certainly will not know it in sufficient detail to be able to determine what affects the Assembly's responsibilities and what does not. In fact, this is an important link. It is unique to this legislation. It has been very much approved of in the past, and used intelligently and well. We consider that it should continue in the Bill.
My Lords, I have listened with interest to this debate and to what the Minister has said. We assume that, in this instance, we are referring specifically to the Secretary of State for Wales and his or her role in this situation. We will evaluate the Minister's response. In the mean time, I beg leave to withdraw the amendment.
My Lords, I apologise to the Minister for not tabling this amendment in Committee. The truth is that I had not thought about it at Committee stage. It is a problem that occurred to me only as a result of rereading the Bill, as is my habit, between Committee and Report.
The amendment, as is clear from the Marshalled List, seeks to disapply subsection (3) of Clause 37 to any matter under Clause 84(1). Clause 84(1), headed "Construction of references to Ministers and departments", reads as follows, in so far as it is relevant to the amendment:
"So far as may be necessary for the purpose or in consequence of the exercise of any functions of the Welsh Ministers, the First Minister or the Counsel General, any reference in any enactment or other document to—
(a) a Minister of the Crown . . . is to be construed as being or including a reference to the Welsh Ministers".
In other words, where a Welsh Minister is acting in the place of a Minister of the Crown, the expression "Minister of the Crown" is considered to apply to Welsh Ministers. In Clause 37, entitled "Power to call", which I seek to amend, subsection (1) states:
"Subject as follows, the Assembly may require any person—
(a) to attend Assembly proceedings for the purpose of giving evidence, or
(b) to produce for the purposes of the Assembly (or a committee of the Assembly or a sub-committee of such a committee) documents in the possession, or under the control, of the person, concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions".
Perhaps I may move on and draw your Lordships attention to subsection (3), which reads:
"The Assembly may not impose a requirement under subsection (1) on a person who—
(a) is or has been a Minister of the Crown".
I think your Lordships will readily see my concern. It appears that in so far as a Welsh Minister is acting in Wales on Welsh matters as a Minister of the Crown, rather than as a Welsh Minister, he or she cannot be compelled to appear in front of the Assembly, or any committee of the Assembly, and cannot be compelled to produce any documents that might be relevant to that appearance or for any other reason. If that is so, would I not be right in concluding that this is potentially a serious gap in the way in which the Welsh Assembly is capable of controlling the Executive? I beg to move.
My Lords, this is a very interesting amendment. Sometimes it is a good idea to extrapolate certain circumstances from amendments and the consequences thereof. It is interesting to note that the first two First Ministers in the Assembly have been Ministers of the Crown in this place. Had they, under this legislation, been barred from addressing the Assembly on a number of matters of considerable content because they had previously been Ministers of the Crown, that would perhaps have created a very interesting situation. It is a probing amendment to determine whether the legislation is bringing about the desired result or whether it will hamstring the Assembly in getting information that is in the public interest and that of the people of Wales. This is particularly relevant to committee proceedings, for example, about important matters that may have great consequences for the public interest. I will be very interested in the Minister's response to the amendment.
My Lords, the noble Lord, Lord Livsey, may refer to the amendment of the noble Lord, Lord Kingsland, as probing, but by heaven it terrifies me, if I follow the dire implications that the noble Lord, Lord Kingsland, has read into this conjunction between Clauses 37 and 84. I hope to disabuse him of any justification for his fears. I would first like to explain our intent in how the Bill is constructed. Secondly, I hope to prove that that intent is fulfilled in the clauses. We had some anxiety about this amendment, as I was not quite clear on the nature of the worries of the noble Lord, Lord Kingsland. I now understand them. Whether I have understood them sufficiently to assuage them is a different matter altogether, but I will do my best.
The simple fact is that the Assembly will be able to summon the First Minister, the Welsh Ministers, deputy Welsh Ministers and the Counsel General. They are all subject to Clause 37. Ministers of the UK Government and their civil servants, or former UK Government Ministers, or civil servants working for the UK Government, cannot be summoned to be questioned about the exercise of their functions because that is properly the role of this Parliament. I am sure that the noble Lord, Lord Kingsland, agrees with me there. If the intent behind his amendment is to guarantee that such Ministers can be summoned before the Welsh Assembly, I have reservations about that and would express them very strongly. However, I do not think that that is his intent.
It will be perfectly possible for the Assembly to invite any UK Ministers or their civil servants to attend Assembly committee proceedings voluntarily; in fact, it would be the normal expectation that people would voluntarily attend Assembly proceedings and produce information requested by the Assembly. Such requests would undoubtedly be entirely reasonable. It is proper that those in positions of public responsibility respond to reasonable requests, but that would be voluntary; there is no power to summon. The power to summon relates to the Welsh Ministers, the Welsh Executive.
There is no connection between Clause 37 and Clause 84, to which the amendment refers. Clause 84 does not convert references to Ministers of the Crown elsewhere in the Bill into references to the Welsh Ministers. Clause 84 simply ensures that where functions have been transferred to the Welsh Ministers, references to Ministers of the Crown, such as a Secretary of State, in the relevant legislation or any other documents are read as references to the Welsh Ministers, but only so far as may be necessary for the exercise of those functions by the Welsh Ministers. Clause 84 is equivalent to Section 43 of the Government of Wales Act 1998, which also produced this result.
All that we are guaranteeing is that where it is relevant, appropriate and accurate that the legislation should refer to Welsh Ministers, the concept of Ministers in the legislation refers to the Welsh Ministers. It does not subject United Kingdom Ministers to the control of the Assembly in the same way that Welsh Ministers clearly are. Welsh Ministers and the Welsh Executive are answerable to the Assembly, but clearly UK Ministers are not directly answerable to it.
My Lords, Clause 37 was referred to by the noble Lord, Lord Livsey. It is very specific. Clause 37(3) states:
"The Assembly may not impose a requirement under subsection (1) on a person who—
(a) is or has been a Minister of the Crown".
Why does that subsection not override the rest of the clause in question?
My Lords, we are distinguishing between a Welsh Minister who is responsible to the Executive and Ministers who may have been in a UK Government, whom the Assembly has no right to summon. The Assembly may ask them to attend because it has discovered that they may be able to offer valid evidence, but they cannot be summoned before it; only the Welsh Executive can be summoned. I emphasise what I said in my opening remarks; they cannot be summoned to be questioned about the exercise of their functions outside their Welsh responsibilities because UK Ministers are answerable to the UK Parliament, not to the Welsh Assembly. As I said, I do not think that the noble Lord, Lord Kingsland, through his amendment is trying to bring about a circumstance where UK Ministers would be answerable to the Welsh Assembly. I indicated that if that were what he was about, I would be stout in resisting that notion for all the obvious reasons on the boundaries of devolution. However, I do not think that the noble Lord, Lord Kingsland, presented the argument in those terms and that is why I did not stress it too significantly.
My Lords, there is uncertainty about the matter. I emphasise again that this is a probing amendment; because I was not sure myself what the answer was to the problem that it sought to pose to the Government. However, there has been sufficient uncertainty about the exchanges between the government Benches and the opposition and Liberal Benches for the Government to give an undertaking to go away and reflect on the clarity of what is contained in Clauses 37 and 84 in relation to what the Minister has just contended.
It seems to me as well that if somebody has been a Minister of the Crown he is not required to meet the obligations under Clause 37(1) in relation to the exercise of any functions of a Minister of the Crown, even though he is no longer a Minister of the Crown. That is another area that needs clarifying. If a Member of the Welsh Assembly has been a Minister of the Crown, what are the implications for his responsibilities and accountability to the Assembly now that he is undertaking that new task? I think that is the way that the noble Lord, Lord Livsey, put it. With great respect to the Minister, I do not think that we have had as full an answer as the noble Lord, Lord Livsey, might have wanted; and certainly not as full an answer as I would want. That point was underlined by my noble friend Lord Crickhowell.
My Lords, I understand the points that the noble Lord is making. I do not think that it is possible for me to convince him about the issue at this stage, but I shall certainly reflect on the debate and seek to clarify the issue at Third Reading.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begin again not before 8.28 pm?