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Lord Falconer of Thoroton: My Lords, I shall certainly not deal with the amendments in a belligerent way. We had a debate on precisely the same amendments on 2nd June. The noble Lord, Lord Thomas of Gresford, was kind enough to describe my answer on that occasion as "wholly inadequate". Although I shall repeat enough of the points, I hope that I shall go further than on the last occasion.

I hope that it is clear from what I said on the last occasion--I shall certainly say it on this occasion--that there is very little between the Government and the noble Lord on the central issue in this debate; namely, that the assembly should be fully consulted about those government Bills which affect its responsibilities such as the environment, planning, education and social services.

In the course of the debate this evening, the noble Lord, Lord Thomas of Gresford, said that he believes it appropriate that the assembly should be consulted about the legislation within which the assembly must work. I do not believe that there is much difference between us in relation to what the central obligation should be. We also seem to be in agreement that the nature of consultation should not be prescribed by this clause since his Amendments Nos. 44 to 48 do not prescribe what form the consultation should take, only that there must be consultation.

In our draft, as is the way, it would be for the Secretary of State to form a judgment about the nature and extent of the consultation and its precise timing. When it is the Secretary of State who is, as it were, the one "in the know" as to proposals in relation to primary legislation in the Westminster Parliament, then, in effect, and simply through that circumstance alone, it must be for the Secretary of State to determine what is the most appropriate way for that consultation to take place and the most appropriate time for it. So the drafting of the Bill in its present form is simply intended to reflect that simple reality.

I believe that I may also lay to rest any concern that the noble Lord had that consultation would not take place until a Bill had been introduced. That would not be a practical way for the government of the day to proceed. I am sure that this and future governments will want relevant legislation framed with regard to the assembly's views. I say "relevant legislation" because, as I believe I have made clear and I believe the noble Lord accepts, plainly there will be some pieces of government legislation--for example, legislation applying only to England or matters such as the Armed Forces--which lie outside the assembly's responsibilities and where the Secretary of State may conclude that no consultation is appropriate. Again, I do not believe that that is very far from what the noble Lord said in the course of the debate.

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The final amendment in this group invites us to omit Clause 31(4) which states:


    "This section does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".

Perhaps I may develop an example of where that provision might be relevant and draw on an actual case. When the community charge had been in operation for only one year, the Government decided to introduce a blanket reduction of £140 per person for the second year to be funded by an increase in VAT. The decision was announced in the then Budget and the relevant legislation was introduced afterwards in a Bill which was separate from the Finance Bill. Before the Budget announcement the Government had already formed an intention to introduce a Bill. If the assembly had been in existence at the time, that would have triggered a requirement for consultation under subsection (3) since, as we know, local taxation would be among the assembly's responsibilities.

I hope that the noble Lord can see how, in the scenario I have given, a Secretary of State might well have concluded that there were considerations prior to the Budget announcement which would make it wholly inappropriate for him to consult the assembly. In a sense it would have been in the same position as everybody else--it would have to wait until the Budget. Obviously, once the announcement had been made there would be nothing to prevent consultation and the full involvement of the assembly in the finalisation of legislation.

I hope that that example demonstrates that subsection (4) has a purpose which is separate from the discretion about consultation given to the Secretary of State in subsections (1) and (3). In view of those explanations, I very much hope that the noble Lord will see that we are on broadly the same lines and that the clause seeks to achieve that which the noble Lord wishes to achieve. I invite him to withdraw the amendment.

Lord Thomas of Gresford: My Lords, I am grateful to the Minister for his explanation and for reminding me that I described his previous reply as "wholly inadequate". I now amend that phrase and say that his reply has simply been "inadequate".

The essential point that I am trying to convey to the Government--I want them to give full consideration to amending the Bill--is with regard to the fact that there should be a firm duty on the Secretary of State, enforceable at law, to consult the assembly. It should not be a matter of discretion. The Minister knows that when we discussed concordats, I argued that they should not be legalistic documents, and that there should not be the opportunity to run to court to enforce the working relationships between various government departments. But this is of an entirely different order.

We should not get into the situation, to which the noble Lord, Lord Mackay, referred, where one political party is in power in Westminster and another in Cardiff, there is a clash between the two and the Westminster Government refuse to consult Cardiff. In that situation, there is a role for the courts to play, to enforce a duty on the Secretary of State to consult on the primary

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legislative programme within which the Welsh assembly has to work. That is what I seek from the Government. Heaven knows, we have helped them even today in certain other areas and I look for their assurances and their further assistance when we next debate this. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elis-Thomas moved Amendment No. 45:


Page 20, line 22, after ("session") ("and the National Assembly's legislative proposals").

The noble Lord said: My Lords, I move this amendment in a totally non-belligerent fashion. This is not just a rehearsal of what we debated in Committee on the notion of a fast-track legislative relationship between the assembly and both Houses of Parliament. It is an attempt to develop the argument. The amendments would allow for draft Bills in specified devolved areas and for formal consultation to take place both over the relationship between Cardiff Bay and Westminster as to the making of procedures for representations from the assembly and over consulting on the issue of the further devolution of primary legislative powers.

I am sure that we shall return to this issue over the years in the devolutionary process. I am not seeking a thin end of a wedge--if that can be sought; I seek rather a process of dealing with the specific situation whereby there is a separation of powers--if I can use that expression--between Westminster and Cardiff Bay in relation to legislative form; in other words, that we are dealing with a situation where delegated legislation will be operated and, indeed, devised in Cardiff, and primary legislation will be operated at Westminster. Some of the issues that were raised in Committee, about using procedures at Westminster to ensure that any issues arising out of the assembly's practical role as a deviser of delegated legislation, should be able to be dealt with here. If we do not have such a procedure, the danger is that there will be bland Wales primary legislation here, which means that debates on legislative issues relating to Wales will not be satisfactory at this end and the amount of delegated legislation at the Cardiff end will have to be more substantial. One needs a relationship between the two processes much like what happens at European Union level, where legislation and regulation are made through agreement between member states and implementation is carried out as a consequence.

I believe that merely to produce delegated legislation or implement primary legislation without a return to the source at Westminster means that the assembly may find itself regularly in what I described in Committee as logjams of opportunities to provide for primary legislation issues that arise out of its practical activities. I do not argue that the assembly should have additional powers but rather that it should be able formally to make representations to Westminster as the source of its primary legislative power in a way that makes its activities more meaningful.

To coin a phrase at this time of the evening to wake us up, this is all about taking Clause 33 seriously. The Minister will say that Clause 33 provides that the assembly may consider and make appropriate

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representations about any matter affecting Wales. Of course it may, but that is not the issue. To take the matter seriously means that there are specific indications for that purpose. That is why I have returned to the issue of a cycle of legislative activity whereby what is delegated to Cardiff and is practically produced there has a way of feeding back into the primary process at Westminster. I beg to move.

10.45 p.m.

Lord Roberts of Conwy: My Lords, so far as I can see, there is nothing in Clauses 31 to 33 to prohibit the assembly from making representations concerning any matter that affects Wales, including the need for legislation. Wales has had devoted to it over the years a number of primary legislative measures: the Eisteddfod Act 1959, for which my noble friend Lord Thomas of Gwydir was responsible, and the Welsh Language Act 1993, for which I had some responsibility. We now have the Bill. In recent years certain parts of Bills have related specifically to Wales. I am thinking particularly of the Education Act 1988, and subsequent education legislation also comes to mind.

I would have thought that when the Secretary of State discussed with the assembly the Government's legislative programme for the forthcoming Session under Clause 31 the assembly would put forward its special legislative requirements for Wales. It might have done so earlier on an informal basis. But no one can be sure what will be in the Government's legislative programme until it is announced in the Queen's Speech. I can understand the anxiety of the noble Lord, Lord Elis-Thomas, to get as much as he can on the face of the Bill. It is an anxiety which he has imputed to me in different contexts, but I question the need for this amendment except for its cosmetic value.


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