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Lord Stone of Blackheath: I am grateful to the Minister for offering to reflect on that point. I am glad we did not make a snap judgment on these issues. I hope too that this is regarded as reasonable and acceptable by the noble Baroness, Lady Anelay.

Baroness Anelay of St. John: I shall try to be as reasonable and acceptable as I can, as long as it is reasonable for the Opposition to be so.

It was not my intention to remove any protection from witnesses under the Bill; indeed, it was to clarify how that protection would operate effectively. I certainly did not intend to press the amendment in its present form. I thank the Minister for his offer to reflect upon the issue and to return to it at Report. I look forward to seeing that further amendment at that stage. I hope it will clarify the position. I am sure that any amendment which protects witnesses will meet with the approval of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Clause 2 agreed to.

Clause 3 agreed to.

House resumed: Bill reported without amendment.

Lord Hoyle: My Lords, I beg to move that the House do now adjourn during pleasure until five minutes before nine o'clock.

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

[The Sitting was suspended from 8.25 to 8.55 p.m.]

Government of Wales Bill

House again in Committee.

Clause 23 [Transfers: supplementary]:

[Amendments Nos. 77 to 82 not moved.]

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Williams of Mostyn: We have just debated Government amendments to Clause 22 making various widespread changes to the Bill's provisions on cross-border functions. Clause 23 as it stands is therefore redundant. I shall therefore oppose the Question that Clause 23 stand part of the Bill.

Lord Mackay of Ardbrecknish: I must say that in all the legislation in which I was involved in the last Parliament I do not think I ever proposed that one of my own clauses should not stand part of the Bill. I must make a stop in the proceedings in order to note this amazing business.

I find it even more amazing because at 4.40 p.m. this afternoon I wrote down that the noble Lord, Lord Williams of Mostyn, said that the Government

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would consider any amendment but they would conclude that they were right all along. Quite clearly they have considered their own amendment and concluded that they were wrong all along. They are therefore amending their own Bill. I am not complaining about that; I just want to draw it to the Committee's attention. I hope that if some Members of the Committee decide later in the proceedings that the Bill ought to be amended the Government will not complain too much. If the noble Lord can amend his own Bill then surely the rest of us can amend his Bill.

My second point is that I hope that the noble Lord appreciates the importance of a revising Chamber. Where would the Government have been if we had been a unicameral body--just like the Welsh assembly and the Scottish parliament--and had got to the end of the proceedings in the one and only House and suddenly found that their Bill was deficient in significant ways? More than half the pages in the Marshalled List are down to Government amendments.

My third and most serious point is that these are big changes. The one we are discussing is the insertion of a new schedule into the Bill in place of a clause; later on another large schedule will be put into the Bill in place of a clause. I counted very roughly, and 35 or 36 pages of the Marshalled List will figure in the Bill. The Delegated Powers and Deregulation Committee has not been able to give us its views on this new chunk of the Bill. This is a serious problem. If the Government are going to make major amendments to the Bill in Committee, that is something to which the House will have to turn its attention.

After a quick look through the major amendments which are being put in in place of Clause 23, I notice quite a lot of delegated legislation. As a founder member of the Delegated Powers and Deregulation Committee, and subsequently as a recipient of some of its adverse reports, I very much appreciate the important work of the committee. I have reservations that we are now seeing a whole new chunk of this Bill which will not be considered by the Delegated Powers and Deregulation Committee.

I know that the Minister cannot do anything about the committee but I hope that what I have said will be read by the people who are responsible. I do not know whether the Delegated Powers and Deregulation Committee can have another look and report before Report stage on what will be very much a rewrite of large portions of the Bill. It is an important issue when one has new parts of the Bill containing delegated powers. That is the point I wanted to make about the noble Lord's intention to oppose his own new clause. I am tempted to resist but I shall resist the temptation.

9 p.m.

Lord Thomas of Gresford: I find it extremely refreshing that the Government should be so confident of their position that they can throw out an important clause and replace it with a schedule which explains everything in much more detail. I wish that such an approach to legislation had been adopted by the previous

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government. They clung to every word, every adverb and every verb of the Bills they brought before the House rather than admit for a single second that they were wrong or had rethought the position. Here the Government have rethought the position and have carefully set out their fresh proposals. I hope it is a precedent that the national assembly for Wales will follow.

Lord Elis-Thomas: I am committed to seeing the Government's business through, especially at this time of night. However, I am tempted to intervene as usual, by the remarks of the noble Lord, Lord Mackay. This is a matter of the Government delegating their own intellectual arrangements to rethink their position. That is admirable. I support them.

Clause 23 negatived.

Clauses 24 to 27 agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 83:


After Clause 27, insert the following new clause--

Concordats: Parliamentary approval

(" . No Minister of the Crown or Government Department shall enter into a concordat with the Assembly or a committee of the Assembly unless a draft of the concordat has been laid before, and approved by resolution of, each House of Parliament.").

The noble Lord said: We now turn to the interesting question of concordats. Despite all the words spoken about these new creatures, I am still a little unsure what they are and how they will work. I understand why we cannot see a lot of examples as the parties to the concordats do not yet exist. We have one worked example, as a school textbook may describe it, but, to be honest, it does not make me any the wiser. It reads a little like a series of platitudinous soundbites, but I suppose I should not be surprised. That is very much the approach of the Government to each and every issue.

Who are these concordats to be between? In the Second Reading debate the noble and learned Lord, Lord Falconer of Thoroton, replying for the Government, answered some points I made. I asked him specifically who the concordats were going to be between. The noble and learned Lord said:


    "Any draft concordats that the Welsh Office produces in preparation for the assembly will be published, subject to the provisos mentioned in the Government's White Paper on freedom of information".--[Official Report, 21/4/98; col. 1131.]

My first question is: will someone explain that proviso? I think I know what the proviso is. We have been told that some concordats may not even be published in line with the "substantial harm" test proposed in the Government's White Paper on freedom of information. I would be pleased to hear what "substantial harm" there might be in any of the concordats between the Welsh assembly and Parliament or between the government in Wales and the Government of the United Kingdom. I am naturally suspicious when the Government suggest that they may have concordats, which I understand are going to be terribly important, but the public may not know what those concordats are. I should like to know what exactly the proviso really means and preferably be

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given an example of a concordat, or an issue on which a concordat may be appropriate, where it would be in everyone's interest that the secret society should rule.

The noble and learned Lord went on to say that,


    "concordats are practical documents dealing with working relationships rather than matters that need to feature on the face of legislation ... They will not take the form of binding contracts; they will not take the form of statutory documents, but it may well be the case that they will create a legitimate expectation of consultation".--[Official Report, 21/4/98; cols. 1131-32.]

I ask the Minister this question. Who are the concordats going to be between--between the Welsh assembly and the Westminster Parliament or between the Welsh government and the United Kingdom Government? There was a suggestion in the noble and learned Lord's speech that they might be between a cross-over of the two, that they might be between the Welsh assembly and the United Kingdom Government. Therefore, the Welsh assembly would have a chance to discuss the concordats but Parliament at Westminster would not because it would be the Government who would be the signatory. I am a little confused. I understand that there might be a concordat between the assembly and Parliament. I understand that there might be a concordat between the Welsh government and the United Kingdom Parliament; but I am a little unsure about the cross-overs. Who will sign these concordats? It appears that sometimes it will be civil servants, sometimes Ministers and sometimes a mixture. Lastly, what democratic control will there be?

Clearly, if the concordats are between the Welsh assembly and the United Kingdom Parliament, there has to be parliamentary scrutiny of some kind, both here and in Cardiff. Interestingly enough, I am not alone in being concerned because I am joined in this group of amendments by noble Lords on the Liberal Democrat Benches, who have an amendment which attacks the same issue, although it asks for a slightly different solution. The noble Lord, Lord Elis-Thomas, has a more detailed amendment, which I find interesting, proposing a slightly different procedure. My amendment requires that all concordats would need affirmative orders of this place. Noble Lords on the Liberal Democrat Benches have gone for the negative procedure, which means that Parliament would be able to deal with those issues if it felt it needed to debate them. On minor issues, about which there was no disagreement and where it was felt that there was no need to explore what the Government felt or what was behind the concordat, the order would be allowed to go by.

The noble Lord, Lord Elis-Thomas, wants the procedures governing statutory instruments to apply. As both these procedures govern statutory instruments, I am not sure on which side he is coming down. If he wants to leave it open so that some could be negative and some affirmative, we would need to have something written into the Bill to define when it would be one and when it would be the other.

These matters are difficult. We are obviously now looking at the issue of democratic control. The need for such control seems to me to be highlighted by the problem of the status in law of concordats. I mentioned that and the noble and learned Lord, Lord Falconer,

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replied on the subject, but I must admit that I and some of my noble friends who know more about the law than I do remain puzzled.

Let us assume that a citizen is aggrieved by the workings of government. He has legal recourse in that he can go for judicial review and various other things. However, if the reason for his aggrieved feeling is in a concordat and that concordat has no legal status because it is not a statutory instrument and it has not been before the Houses of Parliament, I believe that the aggrieved citizen will remain aggrieved in that he has no legal recourse because the document is not legal. It may be that I am wrong about that. If I am I shall be delighted to be told that if someone was aggrieved about the way in which a concordat worked in his or her individual case he would be able to do something about it and get a legal remedy. If that is the case then one of my fears goes by the board.

The noble and learned Lord, Lord Falconer, said that they will not be in the form of binding contracts. That suggests to me that they will not be legislative. Indeed, they cannot be unless there are legislative procedures. As I see it, the Government do not intend them to have those procedures. Any one of our amendments tonight would give that legislative power, and that in my view would give the aggrieved citizen, if such ever existed, some recourse.

I believe the Minister will say to me that there are going to be far too many concordats; that many will not be very important and perhaps not at all controversial and that we should not overload the parliamentary timetable with affirmative orders. I understand that. But the Liberal Democrat amendment and that of the noble Lord, Lord Elis-Thomas, gets round that. These two amendments would certainly allow both the assembly and this Parliament to debate and scrutinise where they felt there was a need for public, democratic scrutiny.

So I say to the Minister that I shall not feel in the least slighted if he turns down my amendment but finds the Liberal Democrat amendment or that of the noble Lord, Lord Elis-Thomas, more satisfactory. I shall be delighted for the assemblymen in Wales and the Members of this Parliament in both Houses in future if the Government accede to some form of parliamentary scrutiny on this issue. I see that with the affirmative procedure I would be overloading the parliamentary timetable here. That may be quite a good thing because it would stop the Government doing other things. But I do not believe the Government would accept that. In the amendments that the three of us have brought to the attention of the Committee there is genuine concern. I hope that there is the possibility of some kind of suitable solution coming from the Government. I beg to move.


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