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Lord Prys-Davies: The noble Lord was right to sign the amendment, because it gives us an opportunity to discuss the role of the concordat. I should like to pursue some of the points raised by the noble Lord. As I see it, the concordat represents a low-key approach to the question of co-operation, but if co-operation is enthusiastic it does not require to be based on any written document. Nevertheless, a document would be of value. It would remind the assembly and the departments here in London of their obligations. The task of drawing up the concordat would be helpful in identifying the obstacles to co-operation which need to be dealt with.
I understand from what Ministers have said in the other place and here that the concordat may vary from department to department. That is all very well, but I should have thought that there were certain common principles that would govern all concordats. I am not asking for those principles to be embodied in the Bill, but it would be helpful if Ministers could identify them.
We have heard this evening that those principles include, first, the duty to co-operate; secondly, the duty to agree certain procedural rules and to observe them; thirdly, how the parties will solve the disagreements-- I shall not use the word "dispute"--which probably will arise. I cannot recall that the fourth point has been made, but it appears to me that whatever may be the procedure, that procedure should not be interfered with by either party, except by agreement. I should be grateful if my noble friends the Ministers, either today or at some other stage, would indicate what are the obligations which will be binding on the parties.
Viscount St. Davids: We all understand what the concordats seek to achieve--a working procedure between the assembly or the committees of the assembly and the Westminster Parliament. If we follow the amendment tabled by my noble friend Lord Roberts, they will be given a judicial status, but would that judicial status stand up in the courts if judicial review were sought or would the courts look to the underlying law which gave rise to the problem and therein seek a remedy? The concordats will need to be flexible. They will need constant amendment. They will need to be published and to be signed by both parties, so that both
Lord Stanley of Alderley: Even though he is a lawyer, the noble Lord, Lord Hooson, explained clearly the purpose of a concordat. My question is simple and down to the ground: what happens when that concordat goes wrong? Who can act? Is it the assembly? Is it Westminster? I know not which it will be, but it will go wrong. Life always goes wrong. When the Minister replies perhaps he will say how he is able to correct it.
The Solicitor-General (Lord Falconer of Thoroton): I am grateful for the opportunity to throw a little more light, if I can, on the nature of the concordats in the context of this useful debate about their purpose. All the amendments proposed seek to provide some statutory basis for concordats. That would be in sharp contrast with what the Secretary of State for Wales said on 27th February: that they should not be part of any statutory Bill; they should be non-statutory. I agree with that. In the context of what we expect concordats to do, perhaps I may explain why that seems the right approach.
As the noble Viscount, Lord St. Davids, said, the aim and purpose of the agreement is easily stated. It is to preserve good working relationships which currently exist and ensure that the business of government in Wales and at UK level is conducted smoothly and efficiently after devolution takes effect. The concordats involve in effect non-statutory, non-legally binding agreements between the Welsh assembly and various relevant departments of the Executive in London. Those concordats will contain provisions setting out how such things as information should be exchanged between the assembly and the department in London; how consultation should take place between the two parties to the concordat; and how disagreements, if they arise, should be resolved between the Welsh assembly and the department. Those matters will apply not simply in relation to domestic issues but also to European Union issues.
The people who sign the concordats normally will be senior officials acting on behalf both of the assembly on the one hand and the department on the other. There will be cases where it is inappropriate for officials to sign. It may then be appropriate for an assembly secretary to sign with a Minister from the Government of the UK.
A noble Lord asked how we will know what is a politically sensitive concordat and whether that is a matter for London, Westminster or the Welsh assembly to decide. I should have thought that it was a matter to be determined by the parties to the concordat. Where one is dealing with a non-statutory instrument such as that, where the parties have to form a sensible view at the time, it is plainly not possible in a debate of this
Lord Mackay of Ardbrecknish: I am sorry to stop the noble and learned Lord. He keeps using the words he used at Second Reading--agreement between the assembly and the department of the Government in Whitehall. I understand that the Bill has been changed. There will be a government of Wales using a Cabinet structure. My first rather simplistic question is this. Why is the concordat not between either the civil servants from, let us say, the health department in Wales and the civil servants in the health department at Whitehall, or between Ministers? The Minister keeps saying that it is between the assembly and the Whitehall Government.
My second question is more general. If the concordat concerns the assembly, am I right in assuming that the assembly will know about the concordat and will be able to discuss it? That being the case, it seems to me that Parliament here will not be able to discuss it.
I am not trying to be difficult. I understand why we need concordats. However, I wish to be clear about who the parties will be, and what right either party has. It seems to me that Parliament here, which will be one party to the deal, is being blocked from discussing those concordats.
Lord Falconer of Thoroton: With respect, I do not believe that what the noble Lord said is correct. The nature of the arrangements is that the functions of the Secretary of State for Wales are being transferred to the assembly. It is then for the assembly to determine how those executive functions in part are dealt under the new arrangements. That is why I continue to refer to the arrangements being between the assembly on the one hand and the departments in Whitehall on the other.
The noble Lord's second point brings me to the transparency of the arrangements. It was made clear on Second Reading, it was made clear by my right honourable friend in another place and I make it clear again that almost invariably the terms of a concordat will be published. I say "almost invariably" because, as I have indicated, they will not be published where they fall within an exception in the Freedom of Information Act. Broadly, the relevant exception is that publication would cause substantial harm. It is difficult to think what an exceptional case might be. Although I cannot helpfully give chapter and verse, one has in mind the kind of case where the arrangements would be the exchange of information about the commission of a crime and when, if one indicated how one would provide information from one place to another, that would be detrimental to the public interest and would cause harm because it would help people in committing crimes. Alternatively, perhaps it would be information in relation to defence. I put forward those exceptions extremely tentatively because it is the Government's belief that the occasions when the concordats are not published will be very exceptional.
The legal impact of the arrangements between people who are trying to set out practical working relationships--whether it be between government departments and the assembly or between the existing Welsh Office and local authorities--would never appropriately be a legally binding contract or some kind of statutory scheme. It would be a non-legally binding, non-statutory arrangement. As I said on Second Reading, it might well give rise to a legitimate expectation that, before a particular step was taken by, for example, central government or the Welsh assembly, a particular procedure would be gone through. It might well give rise to a legitimate expectation. If there were a procedure for seeking to resolve disputes between the assembly on the one hand and central government on the other and that had not be gone through it would deprive someone of his legitimate expectation. Who could bring proceedings in relation to that? It would be any individual who could satisfy the court that he had adequate locus to say, "I have been individually harmed by the failure to comply with the terms of the concordat".
It is not for me here to develop the law in relation to that; that will be a matter for the court. However, in many other areas where arrangements for consultation are not complied with, if an individual is harmed by them he has recourse to the courts under judicial review, not in relation to breach of contract and not in relation to breach of statutory duties.
The noble Lord, Lord Mackay, suggested that we would be blocking parliamentary control and that we would be squeezing out Parliament in relation to this process. We are not squeezing out parliamentary control. Plainly, if there are matters of considerable concern either to the assembly or to Parliament because these concordats are published, the matter can be raised in Parliament like any other matter of public interest. There is no attempt to hide or disguise any matter in relation to it. If I may say so with respect, that would be ludicrously overstating the present position. I hope that my response has clarified what the position is in relation to concordats. I believe it is clear that it would be wholly inappropriate, wrong and damaging for concordats to be placed either on the face of the Bill or to be given legal effect.
I turn now to the specific amendments. I believe that I have already said most of what I need to say in relation to them. Amendment No. 83 would require concordats to be approved by both Houses of Parliament. Amendment No. 103A would also require parliamentary approval for them. For the reasons that I have given, we believe that that would be excessive. Although it is far from exact, there is a parallel in that treaties and other international agreements entered into by Her Majesty's Government are not generally subject to a requirement of parliamentary approval.
There is even less of a case for submitting before each Chamber the detailed administrative arrangements for the assembly's working relationship with government departments. After all, the Bill is aimed at the creation of a national assembly, which will be directly accountable to the people of Wales for the functions that are to be devolved. Therefore, it really is a nonsense to suggest that the manner in which the assembly conducts its relationships with other arms of government must be subject to a form of second guessing by Parliament. As I said, we believe that it would be both unhelpful and wrong in principle for concordats to have statutory backing or for them to be binding contracts. They will work through a spirit of co-operation which will be to the benefit of both the assembly and Whitehall. The assembly will agree the terms of the various concordats after it has been elected.
Amendment No. 103A would also require concordats to allow assembly secretaries to have access to officials of government departments. That goes far beyond current practice and, therefore, I see no basis for the view that assembly secretaries should be able to place demands on officials in Whitehall or elsewhere within the UK. Indeed, there are only a few matters upon which the Secretary of State for Wales takes advice from officials in other government departments. I believe that the Forestry Commission is the most notable example in that respect. As I said, it will be for the assembly to agree the terms of the concordats.
Finally, Amendment No. 103A would provide for a concordat to allow the assembly to make representations about payments made to it under Clause 82. This proposed provision is wholly unnecessary as Clause 34 allows the assembly to consider any matter affecting Wales and make representations accordingly. I hope that I have made clear that the Government cannot accept these amendments. However, the debate has given the Government the opportunity to try to lay to rest many of the fears about concordats. I also hope that, on reflection, those noble Lords who proposed the amendments will realise that they are not really necessary.
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