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Lord Wallace of Saltaire: My Lords, perhaps the noble Lord will permit me to pose a question. I am puzzled by the noble Lord's absolutist position that a person can hold allegiance to only one level of government. Yesterday marked the end of a six-month period during which British Ministers were loyal to the British Crown and at the same time also represented the European Union by holding the presidency of the EU. Does the noble Lord adopt the same logic that those two functions are themselves incompatible, or is it possible
Lord Roberts of Conwy: My Lords, I do not believe that the question of loyalty arises. We belong to the European Union. Every six months the leadership of the Union changes. We have taken the chair of different committees and have had leadership of the Union for that period. It is possible to have dual loyalty but those two loyalties are ultimately reconcilable, particularly in the case referred to by the noble Lord. Here we have an entirely different situation. We are talking about a Minister of the United Kingdom Government who seeks office as an executive of the assembly and the conflict of interest that inevitably arises. I am not sure whether the noble Lord was in the Chamber to hear the speech of my noble friend Lord Crickhowell. My noble friend spoke about the various duties and responsibilities of a Secretary of State under the Bill and the duties and responsibilities of a first secretary in the Welsh assembly. If noble Lords study the relationship between those two sets of responsibilities they will agree that it is extremely difficult for the same person to perform both.
It is reasonable to assume that if a Minister of the Crown becomes a member of the assembly he will seek membership of the executive. He may not necessarily be elected to the position of first secretary but he may be appointed to an assembly secretary's position. That situation has been anticipated by the Government. The noble and learned Lord the Solicitor-General when winding up the Second Reading debate said:
It is quite clear that this situation has been anticipated. It is questionable whether the holding of both positions by the same person can be reconciled. There are enough examples within the Bill of the Secretary of State having duties relating to the first secretary and the reverse. It is questionable whether both jobs can be done by the same person. The idea that they should be done by the same person was certainly not in the minds of those who first drew up the Bill. It is clear that that idea has developed recently. The Secretary of State has powers which are to be transferred to the assembly. Why transfer those powers if they are to be exercised in effect by the same person? Rather than power being devolved to the assembly and the person being elected by the assembly, the Secretary of State--the governor-general, as it were--becomes the choice of the assembly and the first secretary. It is questionable because he has to be elected to that position by the assembly.
To give an example, the Secretary of State has power to intervene if international treaty obligations are infringed or cross-border issues arise. Why does he need such powers to act against himself if he is to become first secretary? I do not believe that that was envisaged originally. The possibility arises now as the assembly's advent draws near and the problems of implementing the Bill and the possibility of conflict become more apparent. For example, the location of the assembly is still not decided. The Secretary of State has arrived at a certain decision but when the assembly is elected next May his decision may be changed. The assembly may be in an altogether different location.
I can understand and sympathise with the argument that there may be a need for a transitional period in which the assembly beds down, but surely the Bill allows for that. There is no real need to hasten the process. The transfer of functions can be gradual. It is curious that while there is a prospect of the Secretary of State for Wales becoming first secretary of the assembly no similar proposal has been canvassed for Scotland. One is told that the Secretary of State for Scotland might have considered the possibility of becoming chief executive of the parliament but he very soon dismissed the idea as a nonsense. As to the need for a transitional period, I believe that that is an argument of convenience. It can never outweigh the arguments of principle, which are all against this combination of offices and powers.
The Secretary of State cannot serve two masters with any degree of conviction. There is bound to be a conflict of loyalties between the United Kingdom Cabinet and the Welsh executive, between Westminster and the assembly. We appreciate the difficulties that will arise if the Secretary of State and the first secretary are one and the same. It is because we appreciate the difficulties that we should anticipate them and prevent this strange union from taking place.
The European parallel drawn by the noble Lord is incorrect. The comparison that should be made is if a Minister of the Crown were at the same time attempting to be a commissioner in Brussels. That would be a much more problematical situation than the one the amendment seeks to prevent.
I have limited experience of dual mandates. I accept the principle and welcome the possibility of dual mandates--but at the ordinary member level only. Even then, you would need an exceedingly robust constitution to survive the dual pressure. I have seen very good men torn to shreds by it.
I am a proud member of a county council. When a predecessor of mine, my noble friend Lady Platt of Writtle, was vice-chairman of the council, she came to this place and then went off to the Equal Opportunities Commission, of all interesting posts. There arose a question as to whether she could in that situation carry a dual mandate and be chairman of the county council.
The conflict of interests between being a Minister of the Crown and the head of the Welsh national assembly is such that it would impose intolerable burdens on any individual. It would be wise if that situation were prevented.
Lord Onslow of Woking: My Lords, I support my noble friends Lord Crickhowell and Lord Roberts of Conwy. There must be a conflict of interest which could arise not only from the dual mandate but from holding dual offices in the assembly and in the Cabinet. If such a conflict arose it could cause grave damage to the assembly itself.
If the holder of these two offices comes wearing both his hats to the Royal Welsh Show and there encounters evidence that a great number of farmers in Wales are discontented and unhappy about the position in which they find themselves and are looking to the Government to put that right, or if in going down the streets of Builth he encounters people who are very concerned about the proposed reorganisation of local health services in Powys and Ceredigion, he will find himself in a difficult position.
If he holds only one office he will have no difficulty in saying, "I will see that the best that can be done for you is done according to the position in which I find myself". Should he find himself the first secretary of an assembly which shares the view of the local residents who are anxious on these subjects and which presses it to the point where it is almost prepared to vote against the government of the day--of which he is a member--the assembly may feel inhibited by the fact that it would create a political crisis by forcing a situation in which the wearer of two hats would be obliged to take one of them off and resign one or other of his offices. That might inhibit the freedom of the assembly to stand up for the interests of the people of Wales.
I am not saying that that will necessarily happen next year when the assembly is created, but these are not entirely fanciful possibilities. It would do grave damage to the perception of the assembly in Wales if it were thought by the electorate that there was some inhibition which prevented it from operating in a way which was truly representative of that electorate's best interests.
Lord Simon of Glaisdale: My Lords, from the outset I have been a devolutionist. I am in general sympathy with the thrust of this Bill, as I have been from the outset. I have taken that view from the very moment we discussed the Welsh Referendum Bill.
At this stage, having listened to the argument, I find myself absolutely persuaded by the noble Lord, Lord Crickhowell, and the noble Lords who have spoken in his support. It goes against the very spirit of devolution if a member of the Cabinet--particularly if he be Secretary of State for Wales--can take his place in the assembly.
Apart from that, over and over again potential conflicts of interest have been pointed out, which we should avoid. From the Cross-Benches, as a devolutionist, if the House is divided I shall have no hesitation in following the noble Lord, Lord Crickhowell.
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