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Lord Crickhowell: My Lords, I am all for consultation. I have nothing against the idea that the clause should encourage it. However, I look with some concern at Amendment No. 53 in the name of the noble Lord, which is grouped with the other amendments. That seems to be taking consultation an extraordinarily long way. The noble Lord said that he was not attempting to produce the thin of the wedge but this new clause goes pretty far in that direction.

Here we are told that,

pretty fundamental that--

    "provided that such representations receive the support of at least a two-thirds vote of the members of the Assembly"--
certainly not a totally unlikely event--

    "the Secretary of State for Wales shall within in one year of receiving any such representations, place before Parliament a bill incorporating those representations in the form of proposals for amendments to this Act".

The Secretary of State is apparently not entitled under this clause to go back to the assembly and say, "No, I am not having any of this. This simply is not on". He is obliged to produce a Bill. The noble Lord may tell

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me that the Secretary of State could come down to the House and say, "I have been made to produce this Bill because the Act says that I have to. I do not believe in it and I hope that you will all reject it". If he did that, the relationship with the assembly would be strained in the most appalling way. If a Government Minister comes down to either House with a Bill, there is a reasonable expectation that he will support the Bill.

This clause goes much further than I would wish to go. While I have every sympathy for the general concept that we should have consultation, I should find it quite impossible to support the amendment.

Lord Falconer of Thoroton: My Lords, I congratulate the noble Lord, Lord Elis-Thomas on his continuing ingenuity in seeking means to involve the assembly in primary legislation and to have conferred on it--as the noble Lord, Lord Crickhowell has pointed out--primary legislative powers. It will not surprise him to learn that the Government cannot accept his amendments, some of which were debated in Committee.

As we have already discussed, Clause 31 delivers the White Paper commitment that the Secretary of State would consult the assembly about the Government's legislative programme. The consultation upon it is one way in which the assembly can influence the content of primary legislation. Amendments Nos. 45 and 50 seek to go further and introduce a requirement for the Secretary of State to consult the assembly about the assembly's legislative proposals--namely, draft Bills and draft amendments which it, the assembly, has approved during the previous session.

I am not quite sure to what the draft amendments would relate. If they are to relate to government Bills in a particular session, it would require a remarkable degree of foresight on the part of the assembly to have drafted amendments to them during the previous session. If they relate to Bills in the previous session, it would be too late in any event.

Apart from the consultation under Clause 31, the appropriate way for the assembly to seek to influence legislation at Westminster would be for it to use its powers under Clause 33, which states that the assembly may consider and make appropriate representations about any matter affecting Wales. The assembly can make appropriate representations to whomsoever it chooses about any Bill before Parliament that affects Wales, whether or not the Bill relates to the fields in Schedule 2. Those representations might include suggested amendments and could be published or sent to the appropriate Minister or to any member of either House. It would be for the Government or Parliament, as the case might be, to decide what if anything they wished to do in the light of the assembly's representations.

As for the assembly drafting whole Bills, if the assembly was seeking to argue that some specific new legislative provision should be made for Wales, this could best be put forward in a policy document, again using the powers in Clause 33, rather than in a draft Bill. If the Government of the day were to take up such

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a suggestion from the assembly, they would wish to have their own Bill drafted by parliamentary counsel as now.

Turning to Amendment No. 52, I think Madam Speaker in another place would be well able to deal with any representations she might receive from the assembly without this Bill requiring the Secretary of State to produce proposals for procedure in another place. The assembly will not be part of Parliament, and it is difficult to see what representations it would wish to make to Madam Speaker. I imagine that the assembly would be more likely to make its representations to Government Ministers, or individual Members of this House or another place.

The noble Lord, Lord Crickhowell, took us through Amendment No. 53. He is right: it would require fresh primary legislation at Westminster to confer such powers on the assembly, but that should be a matter for the government of the day to propose and for Parliament to approve, no doubt following a referendum on the matter, rather than merely a vote in the assembly, as the amendment proposes. The new clause goes well beyond the Government's proposals which were put to the people of Wales last year, and we cannot accept it. In view of my response, I invite the noble Lord to withdraw the amendment.

Lord Elis-Thomas: My Lords, I am grateful to my noble and learned friend. I thank him for his remarks about my ingenuity which is matched only by his ability to expand upon the efficacious nature of Clause 33. I am grateful to him for the indication he gave. I accept that Amendment No. 53 is an attempt to raise the issue of the primacy of powers, and I am grateful for his confirmation that that will be a matter for Parliament.

I am grateful also to my noble and learned friend for the indication of the breadth of Clause 33 in relation to legislative proposals with regard to amendments and draft Bills, and the opportunity to have a creative relationship with Parliament in that whole area. I hope that the noble Lord, Lord Crickhowell, as always, will be part of that creativity. I thank him for his contribution to the debate. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 46 to 51 not moved.]

Clause 33 [Consideration of matters affecting Wales]:

[Amendment No. 52 not moved.]

[Amendment No. 53 not moved.]

Clause 34 [Staff]:

Lord Crickhowell moved Amendment No. 54:

Page 21, line 5, leave out subsection (2) and insert--
("(2) Service as a member of the Assembly's staff serving the Assembly First Secretary, the Assembly Secretaries and the Executive Committee shall be service in Her Majesty's Home Civil Service.
(2A) Staff serving the Presiding Officer and the Deputy Presiding Officer, clerks and staff serving the subject committees and other committees (but not the Executive Committee), and other servants of the Assembly, may be either members of Her Majesty's Home Civil Service or employed by the Assembly as it considers appropriate.").

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The noble Lord said: My Lords, we come now to the subject of the staffing of the assembly. It is a matter that was raised in Committee. Amendment No. 55 in the names of my noble friends Lord Roberts of Conwy and Lord Mackay of Ardbrecknish raises the issue in the form in which I did in Committee.

I have sought to widen the argument in Amendments Nos. 54 and 56 for reasons that I will explain. Since we started dealing with the Bill we have, of course, had the change in the Government's intentions as to how the assembly should operate. We are now, effectively, to have a Cabinet-type structure. That raises the issue to one of greater importance than may have been the case at the start.

The assembly's staff will come from the Welsh Office. At present, former Welsh Office staff will serve the assembly, the executive committee, the first secretary, the other secretaries and the cabinet, but other staff will have the job carried out by clerks in the clerk's department, the speaker's department, and so forth. We need to have different staff to do different jobs. That was a point raised at the last Welsh Questions, interestingly enough, in the other place by Mr. Rhodri Morgan who argued that there should be staff to look after the assembly in its role as a debating chamber and its committee work separate from the staff who serve the executive. The Secretary of State acknowledged that there would be a need for a distinction between the staff, but he suggested that that would simply be by some slight separation of civil servants. In an earlier debate, there was talk about Chinese walls being erected.

I then took a look at the Scottish Bill. I shall not argue that the Welsh assembly will need quite the scale of arrangements that are necessary in the Scottish parliament. The Scottish parliament will deal with legislation. Therefore the clerks will have a different, more formidable role and there will probably be a need for more people with different qualifications.

I confess that I wanted to raise the issue as one of principle which we could debate. Therefore, in tabling my amendments I did not want to choke them up with many provisions about employment conditions and pensions and add many schedules. I have taken from the Scottish legislation two matters of principle that I wish to raise. They seek to establish a situation in which the assembly secretaries, the executive committee and the first secretary shall be served by Her Majesty's Home Civil Service. But I want to give discretion to the assembly to take on other staff who may be employed on other terms and conditions. They may or may not be members of the Home Civil Service. It is not for us to decide whether they should be.

I am doing what I have been urged to do throughout the passage of this Bill by Ministers and the noble Lord, Lord Elis-Thomas; that is to leave it all to the assembly. However, we need to recognise the fact that there may need to be staff who are not members of the Home Civil Service. We need to have arrangements in place which provide for the assembly to take on clerks and other necessary staff. Indeed, in Amendment No. 56 I argue that there shall be a clerk to the assembly and an office of the clerk and that it should be properly staffed.

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There is one other reason for the difference between the solution I have offered in the amendments and that adopted in the Scottish Bill. The Scottish parliament is not a corporate body and therefore a corporate body has to be created to employ these people. Earlier today, we had a long debate initiated by the noble and learned Lord, Lord Simon of Glaisdale. As a result, we are all much better informed about corporate bodies and their powers. The Welsh assembly is to be a corporate body and therefore I do not believe there is a need for the separate arrangements which are contained in the Scottish Bill.

My amendments seek to raise the question of principle and put the proposition to the Government. I have not sought to draft a complete set of what were bound to be technical amendments because that is a job for the Government. If the Government were to accept the principles which I am enunciating they would no doubt bring forward amendments on Third Reading. I believe that the assembly needs to be in a position where it can employ clerks and others who may not be members of the Home Civil Service and there needs to be a clear distinction between those who will serve the executive and those who will serve the assembly and its committees. I beg to move.

11 p.m.

Lord Roberts of Conwy: My Lords, my noble friend Lord Crickhowell is absolutely right to point out that one of the most blatant differences between the Scotland Bill and the Welsh Bill is the clear provision made in the Scotland Bill under Clause 20 for the presiding officer and his corporate body to appoint staff to serve the parliament per se and for the Scottish executive to have its own separate and distinct civil service under Clause 41. There is no such provision for separate staffing for the Welsh assembly and the executive in the Government of Wales Bill.

My noble friend raised the point on Second Reading and, in his absence, I reiterated the key points in Committee. We did not receive a satisfactory reply from the noble and learned Lord the Solicitor-General when he said:

    "I do not believe that it is right or necessary to prescribe in statute how the staff of the assembly should be organised".--[Official Report, 1/6/98; col. 327.]
It is done in the Scotland Bill and clear for all to see.

My noble friend referred to the Official Report and oral Questions to the Secretary of State for Wales last Wednesday, 24th June, when he replied to a Question from Mr. Rhodri Morgan, Cardiff West. They clearly did not see eye to eye on that issue. Mr. Morgan sees the need for staff to serve Back-Benchers in the assembly while Mr. Davies hopes:

    "that an Opposition mindset does not develop in the assembly".
Nevertheless, he went on to say:

    "However, my hon. Friend is partly right to say that there will be a need to set up a Department that is broadly equivalent to the Department that you head, Madam Speaker".--[Official Report, 24/6/98; col. 1036.]

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Therefore, I think that the Secretary of State should make up his mind on this issue before the assembly does it for him.

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