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Lord Williams of Mostyn: The noble Lord makes my point abundantly and in spades. We are dealing with two categories of activity. Perhaps I may just assist the noble Lord so that he does not stumble further into a trap of his own making and, of course, in a spirit of concordance. On his example--I am sure he will happily withdraw it in a moment or two when I have helpfully explained it to him--we are talking about legal

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obligations in the international field. What we are speaking about when we scrutinise with a beady eye his Amendment No. 67, is that if the Secretary of State considers that in the exercise of any function the performance of the assembly is inadequate, then he may take it back to himself. I believe that Imperial Caesar would have thought that that was a bit rich!

Lord Rees: I had no hand in the drawing of this amendment so I look at it with a relatively detached eye. Does the Minister concede that this will be the subject of debate and ratification by Parliament at Westminster? Since the Minister is so concerned about the Caesarian state, is he seriously suggesting, as a member of the current Administration, that if it was the opinion of the Secretary of State and, after debate, of the Parliament at Westminster, that,

    "matters which give rise to the same are likely to persist to the material detriment of good public administration in Wales without intervention",

the government of the day could wash their hands of what was happening across Offa's Dyke?

Lord Williams of Mostyn: Both the noble Lord, Lord Rees, and I used to practise at the Bar so I recognise what he has done. He has immediately disavowed any paternity or even responsibility for the amendment under discussion. If the noble Lord wants to table a reasoned amendment of his own, we shall, of course, give it every proper, due and mature consideration--and probably come to the conclusion that we were right all along anyway! However, we would consider an amendment.

What is being proposed is something wholly different. It is not as wholly different as the example given by the noble Lord, Lord Elis-Thomas, but it is a lurker in the middle. The phrase, "Is the noble Lord suggesting?" has been put to me rhetorically. I recognise that from forensic fields with which many of us are familiar because it immediately suggests that if I disagree with the proposition, there must be something seriously wrong with me.

I am referring to the possibility of a total breakdown leading to catastrophic consequences of the sort mentioned by the noble Lord, Lord Hooson. I respectfully repeat what I believe to be constitutionally correct. Indeed, it has been confirmed by the noble and learned Lord, Lord Simon of Glaisdale. Ultimately, sovereignty remains at Westminster. The short question is whether we approach this on the basis of being hopeful and confident, on the reasoned basis of recent history, that the assembly is capable of working--in other words, is the assembly fitted for power by the powers that we give it--or whether we should build in such mechanisms as will allow intervention. I respectfully suggest that that is what is absurdly and wrongly offered in Amendment No. 67. If a catastrophe occurred, we should have to consider this, bearing in mind our ultimate constitutional sovereignty here in Parliament. I continue--

Lord Roberts of Conwy: Perhaps I may point out that in the new schedule on cross-border issues which

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the Minister is proposing, there is a power for the Secretary of State to intervene in certain circumstances. Would the Minister care to comment at this stage on that power of intervention which is to be given to the Secretary of State?

Lord Williams of Mostyn: Most certainly. That is another helpful intervention, indicating that we are dealing with wholly different circumstances. By definition, cross-border matters do not affect the people who voted for the assembly and who will therefore be governed by it. Cross-border matters relate to colleague nations--if I may use that unattractive phrase--in a different context. I am obliged to the noble Lord, but with great respect perhaps I may advise him that he has again abundantly made the point of principle for which I contended earlier.

We have already considered Schedule 2. We have decided that one of the appointments to the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council should be made with the assembly's agreement. It is to receive copies of those other bodies' reports. That is a useful, practical and utilitarian step.

We are not willing to rule out now, for ever, the possibility of future transfers of ministerial functions to the assembly. We have no plans to make further orders, but we contemplate the possibility that further powers might at some stage be appropriately transferred. The Opposition's amendments would prevent such transfers (even of modest additional functions) without fresh primary legislation. Again, I remind the Committee that there have been many transfers of responsibility to the Welsh Office throughout the course of its life. I refer to the transfers of responsibility for training, higher education and the arts. I am happy to say that all of those transfers were initiatives from the party opposite, very often under the stewardship of the noble Lord, Lord Crickhowell. So, there have been incremental increases and, by and large, in principle and very often in practice, they have worked well.

Reference has been made to the observations of the noble and learned Lord the Solicitor-General. We have provided opportunities in Clause 22 for correcting oversights. Of course, we want to do everything we can to avoid them in the first place. However, it may be that an obscure function in a rarely used old statute has been overlooked. We are looking for a stable constitutional settlement on the basis of confidence that there will be continuity.

The noble Lord, Lord Stanley of Alderley, in Amendment No. 66, seeks to provide that functions could be removed from the assembly at the behest of the government of the day. Some noble Lords have hinted that sometimes some governments, when they have large majorities, are careless of the views of others. The noble Lord's amendment provides for exactly that to occur in 20 or 25 years' time, perhaps when there is a difference in political complexion between Cardiff and Westminster.

We believe that Clause 22(4)(b) provides a level of security for the assembly. It is an intended lock. We believe that the noble Lord's amendment would remove

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that lock. In a contribution which far from being from the dark ages came from the enlightenment, the noble Lord, Lord Stanley, asked me specifically whether there was a veto under Clause 22(4)(b). An Order in Council could not take powers away by transfer order without the approval of the assembly. The noble Lord's construction of that provision is correct. It is important to repeat that Parliament could take away functions, but only by primary legislation, as I said earlier. The power to transfer functions by order cannot be used to remove functions unless the assembly agrees. Clause 102 of the Scotland Bill is to the same effect.

We believe--this comes to the principled approach that one seeks to have, whatever it is--that watering down the powers of the assembly would lead to a constant fear of the reimposition of rule from Whitehall by the back door. If anything was well calculated to cause dissatisfaction and disaffection among Welsh people about their continued existence in the Union, that would be a prime candidate.

4.45 p.m.

Lord Elis-Thomas: I am grateful to the Minister for giving way. I warmly endorse his last two sentences. I fail to understand why noble Lords opposite pursue this issue because if anything is calculated to fan the flames of the nationalism (against the revival of which the noble Lord, Lord Roberts of Conwy, continually strives), it is precisely such an override power. The fear of an override power is more likely to generate nationalistic feeling than is anything else.

Lord Williams of Mostyn: I am obliged to the noble Lord for that contribution.

Amendment No. 67 was consequential in the note provided for me, but offered itself so invitingly that I dealt with it out of chronological order.

I have some sympathy with Amendment No. 58 which stands in the name of the noble Lord, Lord Dixon-Smith. He would like the draft order to be laid no later than 16 weeks before the first elections on 6th May next year. I confirm absolutely, as I think that he was inviting me to do, the contents of the Solicitor-General's letter. I repeat that we intend that the order should have been approved by both Houses and made by Her Majesty before nominations for candidates close at the end of March. Of course, I cannot give a cast-iron guarantee because to an extent it depends on the pressure of business which is not entirely in my hands, particularly in your Lordships' House. That may mean that we are able to lay the draft order more or less than 16 weeks before the elections. I hope that the noble Lord will accept that we are happy to aim for his suggested timetable, but that we do not think it appropriate to make it a binding requirement in the legislation. The noble Lord has made his point of principle, but it would be unusual to set that in stone in statute.

Lord Dixon-Smith: I am extremely grateful to the Minister for his response. I express my gratitude to the noble and learned Lord, Lord Falconer of Thoroton,

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for his letter. I have already done so in his absence. The question that I sought to raise on the back of my rather small amendment was whether there would be a plain man's guide to the transfer written in English so that ordinary people could understand it and, perhaps more importantly, written in Welsh so that ordinary Welshmen could understand it. That would be an extremely useful document for candidates in the election and a very useful reference document for everyone. It would avoid having to go through an appalling mish-mash of legal statements and references back to other enactments. A plain man's guide would be very useful.

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