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Mr. Grieve: I am not minded to support the amendment, but it raises a pertinent issue. It might be helpful if the Minister took the opportunity to explain the nature of the relationship that will exist between the Counsel-General and the Assembly. There is some lack of clarity in the Bill's text about whether the Counsel-General is the servant of the Executive and the Ministers or of the Assembly, or of both.

Of course, in this House, the Attorney-General fulfils a function both as the Government's adviser and, in theory, an adviser to the House, although because he is not a Member of the House, it is difficult for him to discharge that responsibility. I have not seen the Solicitor-General fulfil that function since he was appointed. It is an issue on which there needs to be some clarity.

On the face of it, I can see why the Government have restricted the right to make a reference to the Counsel-General or the Attorney-General, but it raises the question of what the Counsel-General's duties will be and how he should discharge them. I assume that by virtue of his office he has to cast a wholly impartial eye over legislation and, if he thinks that there is an issue of controversy or difficulty, to make the reference. However, that raises a question about the extent to which he should be seen to act and will act independently and the extent to which he will be seen as a creature of the Executive.
 
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The standard problem that could arise, I suppose, is an issue on which there is disagreement between the Assembly and Ministers. We should like some reassurance from the Government as to how they see this working in practice.

Mr. John Gummer (Suffolk, Coastal) (Con): Could we have a clear explanation of this, for another reason? I am rather minded to support the amendment, which seems merely to point out the nonsense of so much of the interior tergiversations that are going on in this clause. The thing that concerns me is the role of the Counsel-General. If he can be shown to be an independent figure able to take a proper legal view of what the Assembly wants, there may be an argument for saying that the Assembly, separate from the Counsel-General, should not have an application to the Supreme Court. The Minister must convince us that the Counsel-General will not be a creature of the Government but a proper servant of the Assembly. If he can so convince us, it would be perfectly proper to leave the Counsel-General that access, because of his legal position, but the Minister would have to be significantly more convincing than either the explanatory notes or what we have heard so far from him. I hope that he will help me.

6 pm

Nick Ainger: Clause 95 gives a specific power to the Counsel-General and the Attorney-General to make a reference to the Supreme Court, where they would like a decision on whether a particular matter specified in a proposed Order in Council actually relates to a field listed in part 1 of schedule 5.

We think that this should be a power for the Counsel-General or Attorney-General to exercise, because it is all about legal interpretation. Does the matter, as described in the proposed Order in Council, actually relate to a field as set out in part 1 of schedule 5? In most cases, it should be clear whether a matter relates to a specified field or not, so in most cases it will not be necessary to use this power. However, in the less clear-cut cases, the Counsel-General or Attorney-General will need to make a judgment as to whether a decision is required from the Supreme Court so that there is clarity on whether a matter is relevant or not.

On a technical point, the Assembly will be an unincorporated association of 60 members. As such the Assembly itself could not institute proceedings in court, but it is possible that the Assembly Commission could act on its behalf. However, that is just a technical point. On the principle that I think the hon. Member for Caernarfon (Hywel Williams) is proposing, I still believe that it is inappropriate and unnecessary for a legal representative of the Assembly, as a legislature, to have such a role. The Counsel-General would be acting to represent Welsh devolution interests in proceedings involving devolution issues. It would seem odd to have two people able to carry out this role.

The position of Counsel-General means that there is someone with status similar to that of Attorney-General—this touches on the points that the hon. Member for Beaconsfield (Mr. Grieve) and the right hon. Member for Suffolk, Coastal (Mr. Gummer) made—to represent devolution interests in proceedings.
 
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Opposition Members should welcome the fact that the Bill creates a post that can represent Welsh devolution interests in proceedings. But the provisions in the Bill correspond with provisions made with respect to Scotland and Northern Ireland.

The Counsel-General's appointment will have to meet with the approval of the Assembly, which should also enable the Assembly to signal that it has confidence in that person's ability to represent Welsh interests.

Mr. Gummer: Would the Counsel-General be required to give advice to the Assembly? In other words, if the Assembly were to say to the Counsel-General, "We think this is a matter you ought to look at," will he be required to give the reasons for his decision not to refer it to the Supreme Court or would he be like the Attorney-General, who never gives the reasons for his advice?

Nick Ainger: I assume, bearing it in mind that the Counsel-General is a member of the Welsh Assembly Government, that when he is approached—we are talking about whether an Order in Council fits in with part 1 of schedule 5—he will be open in giving his opinion as to whether he thought that it did or did not fit in.

I hope that I have answered the point that the hon. Member raised in his amendment. I hope that I have been able to reassure him that the amendments are not necessary, that the Counsel-General will be able to ensure that advice is given to the Assembly and that if there is a question as to whether the issue relates to part 1 of schedule 5, he will refer the matter to the Supreme Court.

Mr. Grieve: The Counsel-General may be a Member of the Assembly, but then again he may not. The option is open. We know from clause 49 that his appointment has to be ratified by the Assembly, but it is not clear how the Assembly would apply pressure, for instance, for his removal. Indeed, this applies to all the Welsh Ministers. I do not know whether it would be possible for the Welsh Assembly to move a motion for someone's salary to be reduced or, indeed, extinguished, which is the way we in this House normally go around these things if we wish to register our displeasure with a Minister's conduct.

There are some issues of procedure. I accept that, ultimately, if the First Minister stands by a Counsel-General who is not performing adequately, that will lead to a crisis in which the Executive might be overturned by the Assembly. Nevertheless, that is a bit of a nuclear button option. In this House, we have other ways of showing clearly that someone has lost our confidence.

David T.C. Davies: Will my hon. Friend give way?

Mr. Grieve: No, I cannot. I was intervening on the Minister.

6 pm

Nick Ainger: It was a long intervention, but not that long. I think that it was an intervention rather than a speech. Perhaps I should have been urging the hon. Gentleman to give way.
 
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Mr. Benton, I do not wish to go out of order. Strictly speaking, we are starting to discuss the issues set out in clause 49. The Assembly would have the power to vote for a reduction in salary. As clause 49 makes clear, proceedings are laid out in the Bill that would have to be followed either to appoint or to remove the Counsel-General.

I think that I have responded to the points raised adequately. I am conscious that we need to make progress, and I urge the hon. Gentleman to withdraw his amendment.

Hywel Williams: I thank the Minister for that response. We welcome the creation of the post and, given his reassurance to me and to the right hon. Member for Suffolk, Coastal (Mr. Gummer) on the Counsel-General's role in advising the Assembly as well as the Government—notwithstanding that he is counted as a Minister—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Mundell (Dumfriesshire, Clydesdale and Tweeddale) (Con): I beg to move amendment No. 188, in page 52, line 11, leave out 'may' and insert 'must'.

This is a probing amendment. I accept, before the Minister tells me, that "must" would be overly prescriptive, but the explanatory notes are, unfortunately, simply a replication of the clause and it would therefore be helpful if the Minister set out the criteria that would define "may" as it currently appears in the clause.

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