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Lord Elis-Thomas: I shall, of course, roll over--to use the words of the Opposition spokesman--but I should like, first, to place on record my objection to the advice of the National Assembly Advisory Group on these matters, and my concern that there will indeed be a tendency for assembly secretaries to become replacements for Welsh Office Ministers who made public appointments with or without consultation in the past, nothwithstanding the fact that some of them might have been good appointments. Therefore, I give the Minister due warning of other later amendments which would ensure that such powers should reside in the assembly rather than in assembly secretaries. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Consultation about government's legislative programme]:

Lord Thomas of Gresford moved Amendment No. 95:

Page 21, line 3, leave out ("such").

The noble Lord said: I should say, first, that we on this side of the Committee will inherit the title of the "party for Wales" from a 120-year Liberal tradition in Wales. With this series of amendments; we are concerned with the role of the Secretary of State. We wonder whether the Secretary of State should consult at his own--a word I used earlier--whim the assembly in relation to the Government's legislative programme or whether, following the Queen's Speech at the beginning of a parliamentary Session, he should be required to go to the assembly and discuss with it the positive Bills that the Government are proposing here in Westminster to introduce into Parliament during the Session.

There are echoes about Clause 32 as presently drawn of Amendment No. 67 which we discussed earlier and which was dismissed out of hand by the Minister. As he rightly said, under that amendment the Secretary of State would have been given far too wide a discretion

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to interfere with the functions of the assembly. Clause 32 states that the Secretary of State need only consult with the assembly about the Government's legislative programme to the extent that it,

    "appears to him to be appropriate".

Moreover, should a new Bill be introduced, he is only required to undertake such consultation as, again, appears to him to be appropriate.

To make it absolutely clear, subsection (4) of the clause says:

    "This section does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".

What if the assembly thinks it is a matter which should be discussed with it? What if the assembly says to the Secretary of State, "This Bill that is to be introduced into the Westminster Parliament has such implications for Wales in a way that you may not as yet have fully comprehended that we must put our representations to you. You are the link between the assembly and the Government"?

The Government's proposals--rightly, we say--are to retain the role of the Secretary of State as a member of the Cabinet. In that Cabinet he will no doubt speak for the Welsh assembly, and when he goes to the Welsh assembly he will no doubt speak for the Government. He is the essential channel of communication. Under the Bill as presently drafted if a particular Bill raises inconvenient or embarrassing issues that he does not particularly want to have aired in Wales, it is left to him to say to the assembly, "I, in my discretion, shall not consult you at all". That would seem to us on these Benches to be entirely wrong. These amendments simply ask the Government to reconsider the position so that the assembly will have that essential channel of communication kept open in relation to all new legislation brought before Parliament. I beg to move.

Earl Russell: The words this amendment seeks to delete seem to me an ideal example for illustrative purposes of the Cambyses clause, the clause that says the Secretary of State may do whatever he likes. The words are that,

    "the Secretary of State shall undertake ... such consultation ... as appears to him to be appropriate".

It is fairly precisely a case of the Secretary of State may do whatever he likes.

Just over two weeks ago we had a debate in this Chamber about the decline of Parliament. It appeared to me, listening to that debate, that the issue in this Chamber was which party, if any, was to be blamed rather than whether such a decline was taking place. If that is the case, this kind of permissive draftsmanship, allowing the Secretary of State an almost infinite degree of discretion, seems to me one of the things which are in part to blame. Secretaries of State should have powers and with powers should go duties. If the duties are whittled down to mere discretion, then legislation falls out of balance and the Secretary of State's powers increase where they should not.

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The Minister has more experience of arguing about the judicial construction of Acts of Parliament than comes to most of us in a lifetime. Can he tell us directly whether this clause would permit the Secretary of State, if it appeared to him to be appropriate, to conduct no consultation whatever? If the answer to that question is yes, it follows that this amendment must be accepted.

Lord Roberts of Conwy: The thrust of Clause 32 is clear; it is, of course, to enable the Secretary of State to discuss with the assembly the Government's legislative programme for the Session and its implications for Wales and for the assembly. There could well be a case for special provisions in legislation relating to Wales, as in a number of Acts passed in recent years. Obviously it would be for the assembly, in consultation with the Secretary of State, to ensure that such provisions were included in the proposed legislation.

There is nothing in the Bill about any prior consultation on the intended contents of the legislative programme, or any separate legislative proposals that the assembly might have. This is the shortcoming that some of the noble Lord's amendments seek to address. The Government's answer may be that there is nothing to prevent any body, including the assembly, from putting forward legislative proposals to the party in government. Such proposals would be considered along with others from different sources. But the assembly is in a special position, being a body with legislative powers, albeit secondary, and extensive executive powers. It may therefore see a clear need for a particular piece of primary legislation which relates specifically to Wales. We have had such legislation in the past. The Welsh Language Act is a good example, and there are a number of others. I am sure that the need will arise again in future.

The question for the Government is whether there is a need to incorporate the duty to consult on the assembly's legislative proposals in the Bill in line with Amendment No. 98. Personally, I see no harm in it, and some merit. Consultation does not give the assembly a right to a place in the legislative programme. No government will ever concede that to any body outside themselves, although the European Commission comes pretty close to it on occasions.

Lord Falconer of Thoroton: Clause 32(1) as presently drafted places on the Secretary of State a statutory obligation to consult about the Government's legislative programme as appears to him to be appropriate. Clause 32(4),

    "does not require the Secretary of State to undertake consultation with the Assembly about a bill if he considers that there are considerations relating to the bill which make it inappropriate for him to do so".

The effect of the Bill as presently drafted is that there is a duty on the Secretary of State to consult on such Bills. The consultation is to be in such form as he thinks appropriate and can be on such Bills as he thinks appropriate. It is nevertheless a statutory duty, and if he exercises his discretion in a way that is unlawful, he could be susceptible to judicial review. That is the extent of the obligation placed upon him by this subsection.

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It is almost invariably the case that this is the way in which legislation of this sort is drafted and there is no other practical way of dealing with it. For example, it is suggested that the words, "such consultation as he thinks appropriate" should be replaced by the word, "consultation", without any indication as to what form the consultation would take. The effect of that as a matter of law would probably be precisely the same as the Bill as drafted, because it would be for the Secretary of State in those circumstances to form a judgment about what form the consultation would take.

The amendment proposed by the noble Lord, Lord Thomas, in effect proposes that the Secretary of State would have to undertake consultation on every single piece of the UK Parliament's legislative programme--even a Bill that related only to England, for example. There are also some subjects which plainly fall outside the assembly's responsibilities. For example, taxation is dealt with through the annual Finance Bill. That is why subsection (4) of the clause allows the Secretary of State to decide that there are considerations which make consultation with the assembly inappropriate. Accordingly, the Government cannot accept Amendments Nos. 95, 97, 99, 100 or 101 because they would in effect impose an impractical and unnecessary obligation on the Secretary of State which is not necessary in the context of the arrangements.

Moreover, in my respectful submission, the noble Earl, Lord Russell, is wrong to say that there is no content to this obligation. There is a content to the obligation. It is a statutory duty, the precise limits of which are susceptible to judicial review.

So far as--

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