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Lord Thomas of Gresford: I speak to Amendment No. 84. There is no concordat between myself and the noble Lord, Lord Mackay of Ardbrecknish, and not even with my noble friend Lord Elis-Thomas on this occasion. I take as my text that which the noble and learned Lord the Solicitor-General said in response to this issue when it was raised in the Second Reading debate--that concordats should be flexible working

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arrangements but that they would create a legitimate expectation of proper consultation between the organs of the assembly and the administration of the Westminster Parliament. I stress that these are arrangements that have to be flexible and have to change in the light of developments and working practices that will be created between the two institutions. I have no doubt that in due course concordats will be less meaningful as constitutional conventions come into being.

There is no point in having the legitimate expectation of consultation to lead to a judicial review of the decision that is taken unless the aggrieved citizen knows precisely what that concordat is. So the purpose of the amendment that we put forward from these Benches is to ensure that there is transparency. We have no objection to flexible working arrangements, nor to changes in those arrangements, as long as they are published and are in the public domain.

The way we have put it in this amendment is that any concordat that is entered into should be laid in draft before Parliament and then, but only then, should one side or the other think it necessary, will the matter come before Parliament on a Motion to annul it. Its importance is not in order to create a cause of action between the Welsh assembly, on the one hand, and the Westminster Parliament, on the other, so that one would be suing the other or trying to obtain specific performance on some contract or agreement or anything of that nature. The whole purpose of concordats is to create a working relationship and its publication is to enable the citizen to know what is going on. There has been a great deal of heat, but no light, in Wales about what a concordat is and how it should work. We hope that by ventilating the issue this evening we shall have some light shed on this so that the public can understand what is meant by "concordat".

9.15 p.m.

Lord Elis-Thomas: I am grateful to both the noble Lord, Lord Mackay, and my noble friend Lord Thomas of Gresford for beginning to bring light to the issue of concordats. The only previous light to be shed on this came in a Parliamentary Answer in another place on 27th February, following which a document was placed in the Library. The Answer came from Mr. Ron Davies in response to a Question from Mr. Gareth Thomas and explained the purposes and significance of concordats.

My concern in Amendment No. 103A is about the transparency of the scrutiny relationships in both Houses here in the Parliament at Westminster and in the national assembly at Cardiff Bay. There should be an understanding that the relationships which are entered into in concordats are of equal value to both parties. Part of my concern, as set out in the amendment, arises from the statement in the guidelines that the non-statutory concordats are to be based on the good working relationships between the Welsh Office and Whitehall departments and on building up confidence in those relationships.

My concern is that whereas the national assembly will scrutinise the concordats--no doubt assembly secretaries will be subject to detailed questioning from

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assembly members about the arrangements into which they have entered--such scrutiny might not be exercised here in Westminster over the other side of the partnership, as it were. We appreciate that the partnerships are entered into with confidence and with a developmental attitude. We are told that there will be arrangements in the guidance for resolving disagreements. We shall be interested to know what progress has been made so far on that.

In Amendment No. 103A, I have highlighted a number of areas--I shall not deal specifically with the relationship with the European Community because that is the subject of another amendment--including the question of the arrangements relating to payments to the assembly under Clause 82. Subsection (6)(c) is important because it relates to the arrangements whereby assembly secretaries may seek advice and information from employees of Ministers of the Crown. I refer to the accessibility of information to assembly members emanating from the Whitehall machine, if I may so describe it, or from officials working for the Parliament and Government here.

There is a mystery in the guidance as it describes the signing of the concordats. Here, I echo what the noble Lord, Lord Mackay, said. The 27th February guidance tells us that if concordats concern politically sensitive issues, they may be signed by UK Ministers and assembly secretaries, otherwise they would be signed at senior official level. But who is to determine which issues are politically sensitive? There is a danger that what is politically sensitive in Cardiff Bay may be regarded as politically insensitive in Westminster, and vice versa. It would be helpful to have some information on that.

As always in these debates, I try to come up with solutions as well as criticisms. Here we have an opportunity not necessarily to follow either my amendments or that from my noble friend Lord Thomas of Gresford, but to find another role for the House of Commons Select Committee on Welsh Affairs-- I understand that it is looking for another role--or, for that matter, for the Welsh Grand Committee in another place or for a yet-to-be-created body, which I can well imagine, such as a Welsh Grand Committee in this House. Such committees could subject to great and detailed scrutiny the relationship between this Parliament at Westminster and the national assembly in Cardiff.

That function could be carried out by elected or appointed members representing the Principality of Wales in this House and in another place. They would be United Kingdom parliamentarians and would therefore be capable of scrutinising UK matters and relationships between Whitehall departments and assembly departments in Cardiff in terms of the secretaries and executives there. That would be a suitable compromise, ensuring effective scrutiny as well as the democratic legitimacy of both bodies, both this Parliament and the national assembly. I put that forward for starters.

Lord Hooson: When I looked at the Marshalled List and observed that I had put my name to this amendment

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I wondered why. As I observed it more closely, I concluded that I had signed it to ensure that there was a wider debate on the issue of concordats.

Lord Elis-Thomas: I had assumed that there was a concordat between the noble Lord and his noble friend.

Lord Hooson: That concordat is of a different nature. I was most grateful to the noble and learned Lord the Solicitor-General for his contribution on the issue of concordats in the Second Reading debate. He reinforced my view, which I had already expressed within my party, that a concordat would be a very important matter for justices to consider in an application for judicial review in the unhappy event of a disagreement or something of that kind between the assembly and the Ministry in London. This matter causes concern in Wales and I believe that there is a need for greater clarity in the Government's thinking.

The noble and learned Lord indicated the general approach but perhaps he will go a little further. As I understand it, concordats are a fairly recent introduction into political life in this country and Europe. I am not a legal historian. The first reference to concordats that I saw was during the Reformation when the Papacy was very concerned, in the emergence of the nation state and the turbulent state of Europe, that other countries should not follow the Tudor example and break away from Rome. The Papacy entered into concordats with various countries. As I understand it, it was not a contract but it laid down a working arrangement and specified those spheres in which the Pope and the monarch would be supreme.

I believe that to introduce concordats into the Bill is a very wise suggestion. We are treading on entirely new territory in the relationship between the assembly, which is the first of its kind, and Westminster. We are all agreed that the relationship should be reasonably flexible. The greatest mistake that we could make at the moment is to try to embody every detail of the relationship in an Act of Parliament. That would be asking for trouble. In the course of the next five or 10 years we shall see what happens. There will be times when there is a bumpy ride and Parliament has got it wrong; there will be times when the assembly wants more power. What is needed is a set of working arrangements. That is the general purpose of the Government as I understand the words of the noble and learned Lord the Solicitor-General.

Therefore, I am not sure that if these three amendments were pressed to a vote I would support any of them. However, I very much want to hear the Government's view as to the purpose of the concordat. When one has no constitutional conventions to govern the relationship between the assembly in Cardiff and Parliament the best alternative is to have a concordat. That can be the basis of a legal ruling if that ever becomes necessary, but the concordat must be capable of adjustment from time to time. The concordat governing the relationship between Parliament and the assembly should be reviewed from time to time to see

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whether the assembly, Parliament, or the government department concerned wants to make adjustments in the light of experience.

I do not believe that it is entirely suitable to treat concordats as though they were statutory instruments. Having reflected upon the matter, I am convinced that the Government's approach is right. We are dealing here with normal working relationships. We do not want things embodied in stone, as it were; we want adjustable relationships. Over the first five or six years, the concordats will be important. Thereafter, they will become less and less important, because conventions will have been established and a relationship set up. On reflection, I believe that I was right to sign the amendment, because it will engender a response from the Government as to their latest thinking on the subject.


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