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Lord Falconer of Thoroton: My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for proposing that the definitions of "enactment" in Clauses 42, 43 and 45 could be brought together in one place. Unfortunately, I do not think that the method he has chosen for doing so is necessarily a sensible way to deal with the matter. I concede straightaway that the amendments of the noble and learned Lord stand up as a matter of law; indeed, they would achieve the effect that he wishes them to achieve. However, if this House were to accept the amendments, there is a risk that future users of the legislation may be misled.

The noble and learned Lord's amendments would have the result that the word "enactment" for the purposes of Clauses 42, 43 and 45 would be defined in Clause 42 as including an enactment contained in an Act passed after this Act or made after the passing of this Act. But someone looking at Clause 43 or Clause 45 in isolation, without the benefit of a legal textbook to assist him or her, might most naturally turn to the list of defined expressions in Clause 155 and mistakenly assume that the definition of "enactment" in Clause 155(1)--which says that enactment "includes subordinate legislation"--was the end of the matter.

Therefore, the point here--and it is perfectly good one--is that, if you take the special definition and put it into Clause 42, when people look at Clause 43 and see the same word they will turn to the definition section instead of going back to Clause 42. The noble and learned Lord's answer to that is to say that there is no problem because there is no necessary inconsistency between the definition of "enactment" in Clause 155(1) and the definition of the word which is to be put into Clause 42. That is right. There is no necessary inconsistency. However, they are different, and they seek to make different points.

If, as the noble and learned Lord suggests, we encapsulate the extended definition only in Clause 42, the reader of the Bill who only turns to the main definition section will not get the broader definition contained in Clause 42. Therefore, the whole point would be lost. It is worth emphasising that some of the

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people who will be reading the legislation will not, so to speak, be the most distinguished Law Lords of their generation.

Lord Simon of Glaisdale: My Lords, I fear that that is not the best argument of the noble and learned Lord. However, it is also fair to say that it is not the worst. We still have to come to his arguments, which are mutually inconsistent, on the phrase,


    "with the consent of the Treasury".

In so far as there was anything at all in the noble and learned Lord's point on Clause 155, that would apply just as much to the Bill as it is drafted; indeed, it is not an inconsistency, but a difference of wording as to the inclusion. It certainly would be different under my amendment from Clause 42. However, in exactly the same way, it is inconsistent or cannot be easily read with Clauses 42, 43 and 45 as drafted.

I also said something about Clause 44. I had thought that the point was a little more arguable now. I would have asked the Government to accept my amendment to that clause and, if it needed adjustment, I would have asked them to adjust it when the Bill returns to the other place, which is where it must go. However, as the noble and learned Lord has set his face against my amendments, it would not have been worth my while to make that point. Nevertheless, I emphasise that if you stop at Clauses 42, 43 and 45, the situation would be exactly comparable to the earlier amendments and would result in a considerable saving.

In so far as Clause 155 has any relevance, it is equally relevant to the Bill as drafted. As I said earlier, however exasperating the Government's response may be, these drafting points are not really suitable for a Division. Therefore, solely on that ground, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 [Construction of references to Ministers and departments]:

[Amendment No. 31 not moved.]

Clause 44 [Parliamentary procedures for subordinate legislation]:

[Amendment No. 32 not moved.]

Clause 45 [Laying of reports and statements]:

[Amendment No. 33 not moved.]

7.15 p.m.

Clause 56 [Executive committee]:

Lord Roberts of Conwy moved Amendment No. 34:


Page 28, line 24, at end insert--
("(2A) No Minister of the Crown shall be a member of the executive committee.").

The noble Lord said: My Lords, noble Lords may wonder why we are returning to this amendment, which would prevent a Minister of the Crown from becoming a member of the Welsh executive, when we have already carried an amendment proposed by my noble friend Lord Crickhowell which will prevent a Minister of the Crown becoming a member of the assembly.

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The amendment now before us is a narrower one upon which I have consulted the authorities of your Lordships' House. I am told that there is no reason why we should not present the other place with a choice of amendments. Of course, if the other place accepts my noble friend's amendment, the amendment now before us will fall as the question of a Minister of the Crown becoming a member of the assembly executive will not arise. Indeed, there will be no such persons in the assembly to be chosen for the executive. However, if the other place rejects my noble friend's amendment, it can consider the one now before the House.

During our debate on the first day of the Report stage on 1st July, I set out the case for the amendment. I pointed out then that, although there appeared to be little objection to dual membership of representative institutions such as this Parliament and the assembly, the position was different when the member concerned was a Minister of the Crown whose first allegiance was to the UK Government. Indeed, I pointed out that that might well be in conflict with the assembly's executive of which he could also be a member.

Our contention is that a Minister of the Crown cannot serve two masters: he cannot be loyal to the UK Government with their principle of collective responsibility and to the executive of the Welsh assembly, which will operate on similar principle and on similar lines. The noble Lord, Lord Wallace of Saltaire, raised the question of British Ministers acting for the European Union during our recent presidency while remaining loyal to the Crown. I believe that my noble friend Lord Dixon-Smith gave the right answer when he said that the European parallel was incorrect and that the most apposite comparison in terms of the amendment was the problematic situation which would arise if a British Minister were to become a European Commissioner. That situation has never been allowed to happen because it has always been understood where the loyalties of Ministers and Commissioners lie.

We are not addressing a hypothetical issue here. The Secretary of State for Wales has let it be known that he may well stand for membership of the Welsh assembly and indeed seek to become its first secretary. The possibility was confirmed by the noble and learned Lord the Solicitor-General during our Second Reading debate on 21st April when he said,


    "The Bill does not prevent one person being both assembly first secretary and Secretary of State for Wales".--[Official Report, 21/4/98; col. 1134.]

The noble and learned Lord went on to describe in effect how that might be brought about.

I contend that such a development would make a nonsense of these devolution proposals. The essence of this Bill is the transfer of functions from the Secretary of State to the assembly under Clause 22. The assembly first secretary under Clause 56(6) is accountable to the assembly,


    "for the exercise of functions by the executive committee"

which he chairs. There are some functions which may be reserved by the assembly for itself, but the first secretary's functions are substantial. We are therefore faced with a constitutional contradiction, circumvention,

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illusion, legerdemain--I do not know which word is the most appropriate. It is quite clear that if both positions are held by the same person, we shall witness the Secretary of State giving powers with one hand and taking them back, as assembly first secretary, with the other. That is a constitutional nonsense. It is hocus-pocus of the worst order.

I cannot believe it was in anyone's mind when this Bill was drafted that the post of first secretary would be held by the Secretary of State; otherwise, we have all been hoodwinked. There are a number of clauses where the Secretary of State or a Minister acts independently of the assembly and intervenes on behalf of the United Kingdom Government, as, for example, when the assembly takes action contrary to United Kingdom treaty obligations, or in cross-border areas where English electors not represented in the assembly may feel aggrieved. Therefore it is hard to see the Secretary of State acting against himself as first secretary. There have been other instances referred to earlier today by my noble friend Lord Crickhowell.

This situation whereby the Secretary of State may stand for the assembly and become first secretary is a comparatively recent development. We are told that it is inspired by the Secretary of State's desire to see the assembly firmly set up and running. We are also told that holding the two positions will be a temporary transitional phase lasting no more than a few months. Your Lordships may agree with me that the implementation of an Act of Parliament should not, and does not, depend on individual Ministers, however high the office they hold. I think the Secretary of State's mind can be put at rest with a clear assertion that Parliament's will will be done irrespective of persons and who holds particular offices. I beg to move.


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